**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Amendment of Section 73.202(b), ) MM Docket No. 94-78

Table of Allotments, ) RM-8472

FM Broadcast Stations. ) RM-8525

(Cloverdale, Montgomery )

and Warrior, Alabama) )

**MEMORANDUM OPINION AND ORDER**

**(Proceeding Terminated)**

**Adopted: May 12, 2000** **Released: June 14, 2000**

By the Commission:

1\. The Commission has before it an Application for Review filed by
William P. Rogers (\"Rogers\") directed to the staff [Memorandum Opinion
and Order]{.underline} in this proceeding. 12 FCC Rcd 2090 (1997). Deep
South Broadcasting Company (\"Deep South\"), the licensee of Station
WBAM-FM, Channel 255C1, Montgomery, Alabama, and North Jefferson
Broadcasting Company, Inc., a 50 percent owner of WBHK, LLC, which was
the former licensee of Station WBHK(FM),[^1] Channel 254C1, Warrior,
Alabama (jointly referred to as \"WBHK/WBAM\") filed an Opposition to
Rogers\' Application for Review. Rogers filed a Reply to WBHK/WBAM\'s
Opposition and a Supplement to his Reply. For the reasons discussed
below, we deny the Application for Review.

2\. [Background]{.underline}. At the request of Pulaski Broadcasting,
Inc. ("Pulaski"), the [Notice of Proposed Rule Making]{.underline}
("[Notice]{.underline}") in this proceeding proposed the allotment of FM
Channel 254A to Cloverdale, Alabama as its first local aural
transmission service. 9 FCC Rcd 3311 (1994).[^2] In response to the
[Notice]{.underline}, both WBHK/WBAM and Rogers filed counterproposals.
In his counterproposal, Rogers requested the allotment of Channel 254A
to Florence, Alabama, as its third local FM service. The [Report and
Order]{.underline} granted the joint counterproposal filed by WBHK/WBAM
by upgrading Station WBHK (formerly, Station WLBI), Warrior, to specify
operation on Channel 254C1, and downgrading Station WBAM-FM, Montgomery,
to specify operation on Channel 255C1. 10 FCC Rcd 13630 (1995). In so
doing, the [Report and Order]{.underline} did not accept Rogers\'
counterproposal. There were three reasons for that action. First, the
staff found that Rogers\' counterproposal is short-spaced to the
licensed site of Station WZLQ, Channel 253C1, Tupelo, Mississippi.
Second, using the Commission's standard methodology for predicting
signal coverage, Rogers\' counterproposal did not provide a 70 dBu
contour over the entire community of Florence, as required by Section
73.315(a) of the Commission\'s Rules. Third, the [Report and
Order]{.underline} found that Rogers' use of actual terrain factors to
demonstrate coverage of Florence was unacceptable. The [Memorandum
Opinion and Order]{.underline} denied a Petition for Reconsideration
filed by Rogers directed to the [Report and Order]{.underline}.

3\. [Application for Review]{.underline}. In his Application for Review,
Rogers sets forth two arguments. First, he contends that the
short-spacing to the licensed site of Station WZLQ, Channel 253C1,
Tupelo, Mississippi, should not preclude his proposed allotment of
Channel 254A at Florence, Alabama. This claim is based upon the fact
that at the time he filed his counterproposal, his proposal met the
minimum separation requirements with respect to Station WZLQ\'s
outstanding construction permit (File No. BPH-930812IB). In this regard,
Rogers argues that the dismissal of his proposal was in contravention of
\"applicable precedent.\" Second, Rogers contends that the 70 dBu signal
of his proposed Channel 254A allotment will encompass 88% of Florence,
and consistent with prior actions, should not have been dismissed. We
will consider each of these arguments below.

4\. [Discussion]{.underline}. At the time that Rogers submitted his
counterproposal for Florence, Alabama, the staff had a policy of
allotting a new channel to a community even if it was short spaced to an
outstanding license, if there was an outstanding construction permit
which would obviate the short-spacing with the licensed facilities.
[See,]{.underline} [e.g.]{.underline}, [Linden, Texas]{.underline}, 10
FCC Rcd 5126 (1995). In those kinds of cases, the staff would defer the
licensing of a proposed new channel until the facilities specified in
the relevant construction permit were constructed and licensed. This
procedure made the processing of rulemaking proposals contingent on the
construction and licensing of authorized facilities by third parties in
separate proceedings to effect compliance with the minimum separation
requirements. The staff no longer adheres to this procedure.
[See]{.underline} [Cut and Shoot, Texas]{.underline}, 11 FCC Rcd 16383
(Policy and Rules Div. 1996). In [Cut and Shoot]{.underline}, it was
determined that such a procedure was not conducive to the efficient
transaction of Commission business and imposed unnecessary burdens on
the administrative resources of the Commission. It was also determined
that this procedure was unfair to parties who filed proposals in
compliance with our separation requirements and delayed service to the
public pending the licensing of an outstanding construction permit. We
concur in the policy adopted by the staff in [Cut and
Shoot]{.underline}.

5\. To the extent that Rogers has argued that he has been treated
unfairly in that the more lenient policy preceding [Cut and
Shoot]{.underline} should have been but was not applied to his
counterproposal, it is not necessary to resolve this issue. The staff's
denial of Rogers' counterproposal on the grounds that it failed to
comply with Section 73.315(a) of the Commission's Rules is valid and
dispositive.

6\. The Rogers proposal for a Channel 254A allotment will not provide
the entire community of Florence with the requisite 70 dBu signal, in
contravention of Section 73.315(a) of the Rules. In his Application for
Review, Rogers refers to two examples in which, at the application
stage, less than 100% coverage of the proposed city of license was
determined to be \"substantial compliance\" or Section 73.315(a) was
waived. [See]{.underline} [Virginia Beach, Virginia]{.underline} , 5 FCC
Rcd 3949 (1990) and [Barry Skidelsky]{.underline}, 70 RR 2d 722 (1992).
These cases are not persuasive, however, because they do not address
coverage issues in the context of allotment proceedings. We continue to
believe that there is a valid reason for considering Section 73.315(a)
differently at the allotment stage as opposed to the application stage.
At the allotment stage, we determine coverage by utilizing the maximum
power for the class and the antenna height above average terrain
("HAAT"), the latter being determined by averaging the elevations along
each of eight radials from 3 to 16 kilometers from a theoretical
reference site. We cannot evaluate the actual transmitter site that will
be specified in the successful application for the Channel 254A
allotment at Florence, because no such site yet exists. Here, there is
no assurance that Rogers will be the successful applicant nor is there a
requirement that he actually specify this site in his application. Thus,
consideration of a waiver request at the allotment stage would be
inappropriate. It continues to be our view that in order to maintain the
technical integrity of the FM broadcast service, we should adhere
strictly to spacing and coverage requirements at the allotment stage,
thereby maximizing the likelihood that the eventual authorization will
comply with our technical requirements. [See,]{.underline}
[e.g.]{.underline}, [Caldwell, College Station and Gause,
Texas]{.underline}, 15 FCC Rcd 3322, 3327 (2000), [recon.]{.underline}
[pending]{.underline}.

7\. In the allotment context, we have waived our city grade coverage
requirement only in [Oak Beach and Bay Shore, New York]{.underline}
(\"[Bay Shore]{.underline}\"), 2 FCC Rcd 1293 (1987) and a situation
involving six communities in the implementation of BC Docket No. 80-90.
[See]{.underline} [Terrell and Daingerfield, Texas]{.underline}, 5 FCC
Rcd 556 (1990) and [Greenwood, South Carolina]{.underline}, 3 FCC Rcd
4108 (1988). None of the waiver cases is analogous to the circumstances
of this case. In [Bay Shore]{.underline}, we allotted Channel 276A to
Bay Shore, New York, as a first local service even though it was
predicted, according to our standard propagation methodology using
average terrain, that a 70 dBu signal would cover only 45% of Bay Shore.
We noted that, because the path from the transmitter site to Bay Shore
consisted of water with no terrain obstructions, the 70 dBu signal
contour would actually extend farther than predicted along that radial,
and likely provide city-grade coverage of Bay Shore. Here, Rogers made
no showing that the terrain along the path towards Florence would
enhance the signal so that it would likely extend farther than
predicted, and provide the requisite coverage of Florence. Moreover,
[Bay Shore]{.underline} was premised on the availability of only one
site \-- Fire Island \-- that met our minimum separation requirements.
The only available transmitter site on Fire Island was located atop an
historic lighthouse that could accommodate an antenna tower,
height-restricted by the National Park Service to 25 feet. At such an
antenna height, the Commission's propagation methodology does not
predict 70 dBu coverage of the entirety of Bay Shore using the
then-maximum power of 3 kilowatts. Thus, under these unusual
circumstances, it was appropriate to rely on the reasonable likelihood
of city-grade coverage, despite the prediction, using our standard
methodology, that 100 % coverage of the community of license would not
be achieved. These unusual circumstances are not present here.

8\. In [Implementation of BC Docket No. 80-90]{.underline} , 59 RR 2d
679 (1985), we reconsidered [sua sponte]{.underline} the principal city
coverage requirement regarding six of the 689 allotments made possible
by our action in BC Docket No. 80-90. In that action, we recognized the
need to provide FM allotments to six larger communities where the demand
for FM allotments was the greatest. Inasmuch as only Class A channels
were available, we \"for \[that\] proceeding only\" allotted these Class
A channels even though they could not provide the requisite principal
city coverage to an entire community. We observe that no party to that
proceeding was prejudiced by this action, whereas in the case now before
us, waiving the coverage rule for Rogers would prejudice other parties
to this proceeding.

9\. Even if we were to accept the Rogers claim that his proposal would
encompass 88% of Florence, we do not believe that waiver in this
situation would be appropriate, because it would prejudice a competing
proposal that fully complies with Section 73.315(a) of the Rules.
[See]{.underline} [Caldwell, College Station and Gause,
Texas]{.underline}, 13 FCC Rcd 13772, 13775-76 (1998),
[appeal]{.underline} [pending]{.underline}.[^3]

10\. We also disagree with Rogers that his proposal encompasses 88% of
Florence. Employing the Commission's F (50,50) curves and utilizing
maximum Class A facilities (6 kW effective radiated power and 100 meters
antenna HAAT) at the site specified for channel 254A at Florence, the
city-grade or 70 dBu contour would extend 16.2 kilometers and cover only
57% of that community. [See]{.underline} Section 73.333 Figure 1 of the
Rules and the map included in Exhibit A of Rogers' "Supplement to Reply
to Opposition to Application for Review." That exhibit is a copy of an
engineering exhibit submitted by Rogers with his original
counterproposal. That exhibit asserts that, using a United States
Geological Survey Topographic Map and a Defense Mapping Industry terrain
data base, the 70 dBu signal would extend approximately 18 kilometers
and encompass 88% of Florence. Under Section 73.313 of the Rules,
however, only average terrain calculations (as determined using the
eight cardinal radials from a reference site) are used in determining
whether the entire community is provided with the requisite 70 dBu
signal coverage. The Commission has not departed from that requirement
in allotment proceedings except in the limited situations described in
paragraphs 7 and 8, [supra]{.underline}, which are not present here,[^4]
and in the circumstance known as the "[Woodstock]{.underline}"
exception. [^5]

11\. Rogers does not qualify for the [Woodstock]{.underline}
exception.[^6] That limited exception permits an existing licensee that
wishes to upgrade its own facilities on a co- or adjacent channel to
demonstrate that a 70 dBu contour would encompass the entire community
of license by using the average elevations of terrain along one radial
between a specific site and the community. Once an upgrade is granted,
the Commission does not consider competing applications that could
specify another site.[^7] Moreover, in [Woodstock]{.underline} the
proponent had taken steps to assure the continued availability of a
transmitter site for the upgraded channel. Additionally, tower approval
had been obtained from the Federal Aviation Administration ("FAA"). It
was, therefore, appropriate to depart from the assumption of a circular
city-grade contour over uniform terrain using a hypothetical reference
site and determine the extent of the 70 dBu signal by examining the
actual terrain profile along the radial from a specific site to the
community. Along that radial, we found that 70 dBu coverage extended
beyond the community of Woodstock. In Rogers' situation, none of the
special [Woodstock]{.underline} facts exist; he is not proposing to
upgrade existing facilities; he does not have reasonable assurance of
the availability of a specific transmitter site or FAA approval of that
site, and there was competition for the allocation from other parties.

12\. Even if Rogers' proposal had qualified for an exception under
[Woodstock]{.underline}, his exhibit claims that a 70 dBu signal would
extend only 18 kilometers (greater than that predicted by our F(50,50)
curves), and encompass 88% of Florence. Therefore, we would not have
allotted Channel 254A to Florence because, as discussed above, his
proposal does not meet the requirement of placing a 70 dBu signal over
the entirety of Florence.

13\. In view of the above, IT IS ORDERED, That the Application for
Review filed by William P. Rogers IS DENIED.

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

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

[^1]: Cox Radio, Inc. is now the licensee of Station WBHK(FM).

[^2]: Pulaski's petition for rule making was dismissed for failure to
    submit comments in a timely fashion after the [Notice]{.underline}
    was released.

[^3]: At the request of the Commission, the foregoing case was remanded
    from the U.S. Court of Appeals for the District of Columbia Circuit
    to the Commission for a supplemental decision. That decision, which
    affirmed the 1998 decision, is published at 15 FCC Rcd 3322 (2000),
    [recon.]{.underline} [pending]{.underline}.

[^4]: However, there are situations, none of which are applicable here,
    where it may be appropriate to use a propagation methodology
    different from the Commission's standard F(50,50) curves. Rule
    §73.313(e) provides for use of an alternate propagation methodology
    such as Tech Note 101 (P.L. Rice, A.G. Longley, K.A. Norton, and
    A.P. Barsis, "Transmission Loss Predictions for Tropospheric
    Communications Circuits," [NBS Technical Note 101]{.underline},
    first published in 1965 by the National Bureau of Standards). It may
    be used to supplement but not supplant, the Commission's F(50,50)
    curves when the terrain along a radial from a specific site "departs
    widely" from average terrain and the "contour distances \[are\]
    different from what may be expected in practice." We note that
    Rogers states in his engineering statement that he used, along with
    the 3-second terrain data base, the "Computer Software Program
    CVR/VER110" to determine the claimed 88% coverage of Florence.
    Rogers does not specify that this program uses the F(50,50) curves
    or that the program even uses an alternate propagation methodology.
    If he uses an alternate propagation methodology, however, he must 1)
    describe the procedures used in preparing the study, 2) the
    assumptions made, and 3) the methodology employed, as well as 4)
    provide sample calculations. Rogers'engineering statement does none
    of this.

[^5]: Rogers also argues that his showing of 88% coverage of Florence
    should be sufficient because it exceeds the 80% coverage requirement
    accepted at the applications stage. We disagree, noting that not
    only does this not meet the 100% coverage requirement of §
    73.315(a), but that, when properly measured, his proposal would
    cover only 57% of the community.

[^6]: [Woodstock and Broadway, Virginia]{.underline}, 3 FCC Rcd 6398
    (1988). It appears that Rogers has used the [Woodstock]{.underline}
    exception in his foregoing engineering exhibit (Exhibit A of Rogers
    "Supplement to Reply to Opposition to Application for Review") to
    demonstrate 88 percent coverage of Florence. Thus, it appears that
    he used the average elevations of terrain along only one radial to
    demonstrate his coverage of Florence. This technique is what the
    [Report and Order]{.underline} referred to as "the use of terrain
    factors to enhance propagation of a 70 dBu signal in the direction
    of Florence," 10 FCC Rcd 13630 at fn.4 (Allocations Br. 1995) and
    the staff Memorandum Opinion and Order referred to as "terrain
    enhancement, " 12 FCC Rcd 2090, 2092 (Policy and Rules Div. 1997).

[^7]: In limiting the transmitter site to that for which the licensee
    has taken specific steps to assure its availability, we know the
    actual site location at the allotment stage, which permits the
    determination of the range of the signal along the radial path from
    that site to the community. If the average elevation of the terrain
    is less than that along the other pertinent radials, then the range
    of the signal will be greater than that predicted by the
    Commission's standard propagation methodology.