**Before the**

**Federal Communications Commission**

Washington, D.C. 20554

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | Facility I.D. No. 87565      |
|                                  | *) |                              |
| CMP Houston-KC, LLC              | ** | File No. BMPH-20010420ABA    |
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| For Minor Modification of        | *  |                              |
| Construction Permit              | *) |                              |
|                                  | ** |                              |
| Of Station KFME-FM, Garden City, |    |                              |
| MO                               | *  |                              |
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|                                  | *  |                              |
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+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: May 28, 2008 Released: July 2, 2008**

By the Commission: Commissioner Copps concurring and issuing a
statement.

**I. INTRODUCTION**

1.  The Commission has under consideration, pursuant to Section 5(c)(4)
    of the Communications Act of 1934, as amended,[^1] and Section 1.115
    of the Commission's Rules (the "Rules")[^2], an Application for
    Review jointly filed by Entercom Communications Corp. ("Entercom")
    and CBS Corporation, as the successor to Infinity Broadcasting
    Corporation ("CBS" and, collectively with Entercom,
    "Appellants"),[^3] and related pleadings regarding station KFME-FM
    (formerly KGAR(FM)),[^4] Garden City, Missouri.[^5] Appellants
    request review of a March 5, 2004 decision ("Staff Decision") which
    affirmed grant of the above-captioned application filed by 1051FM,
    LLC, a predecessor to the current licensee, which is CMP Houston-KC,
    LLC (the "Applicant"), to modify the station's construction permit
    to relocate its transmitter site (the "Modification Application").
    For the reasons set forth below, we affirm grant of the Modification
    Application, and deny the Application for Review.

    **II. BACKGROUND**

2.  On May 1, 2001, the Media Bureau (the "Bureau") granted the
    Modification Application without written decision.[^6] Appellants
    timely filed a Petition for Reconsideration,[^7] asserting that the
    Applicant's proposal did not satisfy the signal coverage requirement
    set forth in Section 73.315(a) of the Rules.[^8] The Applicant had
    explained in its Modification Application that, using the
    Commission's standard contour prediction methodology, the
    transmitter at the proposed new site would not place the requisite
    70 dBu signal over Garden City, the station's community of license.
    The Applicant claimed, however, that in the direction of Garden
    City, the terrain is particularly smooth and therefore departs
    widely from the average terrain that is assumed in the Commission's
    standard methodology. Section 73.313(e) of the Rules allows
    submission of a supplemental showing using an alternative contour
    prediction methodology in cases "where the terrain in one or more
    directions from the antenna site departs widely from the average
    elevation of the 3 to 16 kilometer sector . . . ."[^9] Invoking this
    Rule, the Applicant submitted a supplemental study to demonstrate
    that the favorable terrain conditions would allow the coverage
    requirement of Section 73.315(a) to be satisfied from the new
    transmitter site.

3.  In their Petition for Reconsideration, Appellants disputed the claim
    that the terrain departs widely from the average elevation along the
    radial toward Garden City and argued that a supplemental study
    should not have been accepted. Primarily on this basis, Appellants
    claimed that grant of the Modification Application was in error and
    should be rescinded. The Staff Decision found no material error or
    omission in the underlying grant.[^10] The Bureau explained that it
    had referred the supplemental coverage study to the Commission's
    Office of Engineering and Technology ("OET"), and that OET had
    evaluated the Applicant's showing "and verified that the . . .
    proposal will provide a 3.16 mV/m (70 dBu) signal to Garden City,
    Missouri," thus complying with section 73.315(a).[^11] A copy of the
    report of the OET engineer who had performed the analysis ("OET
    Report") was included with the Staff Decision, together with OET's
    map showing its calculated 70 dBu contour ("OET Map") and the cover
    memo from the Chief of OET's Technical Analysis Branch in the
    Electromagnetic Compatibility Division ("OET Memo").

4.  On review, Appellants argue that the staff grant is "premised upon
    material errors of fact in contravention of FCC rules, policies and
    precedent . . . ."[^12] They further assert that the staff "refused
    to address the merits of Appellants' arguments below" and failed to
    provide the "requisite reasoned consideration of all material facts
    and issues."[^13] Their specific arguments are discussed in more
    detail below.[^14]

    **III. DISCUSSION**

5.  In order to obtain relief through an application for review of
    action taken pursuant to delegated authority, the aggrieved party
    must meet at least one of the criteria set forth in Section
    1.115(b)(2) of the Rules.[^15] The Appellants fail to make the
    required showing.

6.  In support of their argument that the staff should not have
    permitted use of a supplemental study in this case, Appellants cite
    an unpublished staff decision that was issued August 8, 2002,
    roughly 15 months after grant of the KFME-FM Modification
    Application on May 1, 2001, involving station KMAJ-FM, Topeka,
    Kansas (the "*KMAJ Decision*").[^16] Appellants assert that
    so-called "guidelines" set forth in the *KMAJ Decision* regarding
    the definition of "terrain departs widely" for purposes of Section
    73.313(e) were in effect for FM stations at the time the Bureau
    referred the Modification Application to OET, and that such
    guidelines did not support acceptance of a supplemental study in
    this case. Appellants also conclude that the Bureau staff relied on
    OET's "delta-h" calculation[^17] in granting the Modification
    Application[^18] and submit an engineering study to substantiate
    their claim that OET's "delta-h" calculation was incorrect.[^19]

7.  Appellants' reliance on the *KMAJ Decision* is misplaced. That
    decision was issued more than a year after grant of the KFME-FM
    Modification Application. In addition, contrary to Appellants'
    assertion, benchmarks or guidelines mentioned in an unpublished
    staff decision are not "in effect" or binding on the Commission or
    parties to Commission proceedings. As shown in the following
    paragraph, the Commission has adopted a threshold standard for
    determining when a supplemental showing would be considered, but to
    date has declined to specify guidelines for determining when
    "terrain departs widely" as stated in Section 73.313(e). Moreover,
    the OET Report confirmed that the Modification Application meets the
    test set forth in the *KMAJ Decision* of a 30 percent or greater
    difference in the distance to the 70 dBu contour compared to the
    distance provided by the standard prediction method.[^20]

8.  The Bureau's Memorandum referring the KFME-FM proposal to OET for 70
    dBu signal contour analysis states: "Our review of the supplemental
    showing reveals that in the direction of Garden City, MO, the 70 dBu
    contour, using the Diffcomb program, extends beyond the 70 dBu field
    strength contour, calculated using the prediction methodology of §
    73.313, by greater than 30 percent."[^21] It states further that
    "\[b\]y policy, the extension must be 10 percent or more for
    referral to \[OET\] for analysis." The "10 percent or more" standard
    was included in the *Report and Order* issued by the Commission in
    its streamlining rulemaking proceeding, as were other guidelines
    concerning supplemental showings submitted pursuant to Section
    73.313(e).[^22] In this case, the Applicant met that threshold 10
    percent standard with an alternative showing of a difference
    exceeding 30 percent. Although the Commission specified the 10
    percent or more standard as a threshold requirement for considering
    a supplemental showing, the Commission declined to "set standards
    for such showings beyond the guidelines given here" as to the
    definition of "terrain departs widely."[^23] Because different
    applicants may use different methods of making supplemental
    showings, a case-by-case analysis applies to supplemental showings
    that meet the threshold standard.[^24]

9.  In this case, OET's verification of coverage of Garden City by the
    station's signal at the 70 dBu signal strength \-- the dispositive
    assessment on which the staff relied in granting the Modification
    Application -- suggests that the terrain does depart widely from the
    average elevation of the 3 to 16 kilometer sector in the direction
    of Garden City. Specifically, based on OET's analysis, the actual 70
    dBu contour location is extended significantly -- roughly 17
    kilometers \-- beyond the 70 dBu contour location that is calculated
    using the standard prediction methodology, and provides the
    requisite coverage under Section 73.315(a).

10. We reject Appellants' contention that OET's analysis of the 70 dBu
    contour is nullified by its "misplotting" the location of Garden
    City "closer to the transmitter facility," and by the "decision to
    examine the terrain profile along the 150° N, 155° N and 160° N
    radials . . . ."[^25] Specifically, Appellants claim that the
    community boundaries lie "within the 156° and 159.5° radials . .
    ."[^26] and calculate the farthest distance of Garden City to be
    65.2 km from the transmitter,[^27] versus OET's estimate of 64.5
    kilometers. According to Appellants, these alleged errors render
    OET's analysis of signal coverage "meaningless."[^28] These
    complaints, however, amount to nothing more than hair splitting on
    immaterial points. The OET Map attached to the Staff Decision
    depicts OET's calculated 70 dBu contour and the three radials that
    OET used. This Map indicates that the 70 dBu contour \-- in
    particular, the arc connecting the calculated 70 dBu points on the
    155° and 160° radials \-- encompasses Garden City. Even if we
    accepted Appellants' estimated distance of 65.2 kilometers, a
    potential shortfall of 0.2 kilometers of coverage of Garden City
    would be *de minimis* and not require a waiver.[^29] Notably,
    Appellants have not submitted their own map depicting a different 70
    dBu contour or any actual shortfall of coverage of Garden City with
    a 70 dBu contour. Accordingly, we affirm the finding of the Staff
    Decision that the Modification Application complies with Section
    73.315(a).

11. Finally, Appellants assert that the Staff Decision rejected
    Appellants' arguments set forth in the Petition for Reconsideration
    entirely on "procedural grounds" and "failed to provide a reasoned
    analysis of material facts supporting the grant" of the Modification
    Application.[^30] Appellants mischaracterize the Staff Decision. The
    Bureau staff did not *dismiss* the Petition for Reconsideration for
    procedural defects or on any other grounds, but *denied* the
    Petition for Reconsideration on substantive grounds. In reaching its
    determination that Appellants had not shown a material error or
    omission in the underlying grant, the staff necessarily considered
    the merits of the Petition and also considered various other
    pleadings submitted by Appellants thereafter.[^31] While the staff
    could have chosen to discuss Appellants' arguments in greater
    detail, there was no requirement to do so, nor was the staff's
    analysis required to be of a minimum length.[^32] As noted above,
    the dispositive finding supporting grant of the Application was
    concisely stated in the Staff Decision: OET "verified that the
    KFME-FM proposal will provide a 3.16 mV/m (70 dBu) signal to Garden
    City, Missouri."[^33] In addition, the Staff Decision included a
    copy of the OET Report, OET Memo, and OET Map \-- attachments that
    provided Appellants with important information as to the basis for
    OET's conclusion that the 70 dBu contour encompasses Garden City
    from the proposed location. We thus reject Appellants' complaint
    that the staff did not address the merits of their arguments below.
    In any event, we have carefully considered the full record in this
    case and find no grounds to rescind grant of the Modification
    Application. Accordingly, Appellants' argument regarding the
    deficiency of the Staff Decision is now moot.

    **IV. ORDERING CLAUSE**

12. Accordingly, IT IS ORDERED, that the Application for Review filed
    jointly by Entercom Communications Corp. and CBS Corporation, as the
    successor to Infinity Broadcasting Corporation, IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**CONCURRING STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

  

Re:     *CMP Houston-KC, LLC for Minor Modification of Construction
Permit of Station KFME-FM, Garden City, MO; Shaw Communications, Inc.,
Application for a New FM Translator Station, Berlin, NH*

These cases provide another example of how the Commission tips the
playing field against local interests---particularly local ***rural***
interests. Standing alone, the cases may seem unremarkable. When
juxtaposed, however, they reveal how even arcane broadcast engineering
rules can be manipulated to make it easier to loosen the bonds between
broadcast stations and the local communities they are licensed to serve.

The first case deals with an FM station's application to move its
transmitter to Independence, Missouri (part of the Kansas City, Missouri
metropolitan area). The station is not licensed to Kansas City but to
Garden City, a rural community of about 1,500 residents approximately
40-50 miles to Kansas City's southeast. Because of the distance, the
station would not cover Garden City with the requisite city grade signal
strength using the Commission's standard prediction methodology.
Specifically, using the Commission's standard methodology, the station's
city grade contour falls some 13.5 km short of providing adequate
coverage to Garden City.

Nevertheless, the Commission approves the site move under Section
73.313(e) of our rules, which permits alternative coverage calculations
where the topography in question "departs widely" from the average
terrain assumed by our standard methodology. The station seeking the
site change demonstrated that the terrain in the direction of Garden
City is particularly smooth, and therefore that its coverage extends
beyond what the Commission's standard model would predict. Commission
staff analyzed the data and confirmed that Garden City will, in fact,
receive a city grade signal due to the flat terrain.

The lesson of *Garden City* therefore seems to be that we will use our
standard prediction methodology to assess signal coverage, but if the
terrain varies significantly from our baseline assumptions, we will be
guided by the facts on the ground. The rule itself gives the example of
a mountain ridge that "may indicate the practical limit of service
although the prediction method may indicate otherwise." *See* 47 CFR
§73.313(e).

Which brings us to the Berlin, New Hampshire case. There, the issue is
whether a proposed FM translator station in Berlin, New Hampshire
can---as required by our rules---receive the off-air signal of the "main
station" located in Conway, New Hampshire. An objecting party asserts
that, in reality, several tall mountains preclude the signal of the
Conway station from reaching the proposed translator in Berlin. Under
the reasoning of *Garden City*, one would expect the Commission: (1) to
examine whether the mountainous New Hampshire terrain "departs widely"
from our baseline assumptions, and, if so, (2) to assess whether, in
fact, the intervening mountains prevent the Conway signal from reaching
Berlin.

But that's where the Commission pulls a quick one. While it
***permits*** the station in *Garden City* to use unusual terrain to
show that its signal actually reaches ***farther*** than the standard
prediction model, it ***refuses*** to permit the objecting party in
*Berlin* to use unusual terrain to show that the Conway station's signal
actually travels ***less far*** than predicted. In essence, the
Commission recognizes the reality of the flat Missouri terrain but then
assumes away the existence of mountains in New Hampshire. The only way
to make sense of this approach is that the Commission permits
alternative showings where they enable broadcasters to move farther from
their local communities, but bars them where they could keep
broadcasters closer to home.

I want to make clear that I am not concluding that the broadcasters in
these cases cannot and will not serve their local communities. Perhaps
the Missouri station can fully serve the needs and interests of the
people of Garden City from its distant Kansas City tower site.[^34]
Perhaps the Berlin translator will be just as "local" as if it actually
received an off-air signal from the main station in Conway. But I
fear---over time and over similar cases---our approach takes its toll.

Ultimately, the erosion of localism is not the result of a particular
rule change or single event. It is the result of countless steps---some
large, some small---that incrementally shift the center of gravity until
we wake up one day and wonder where we are and how we ever got here.
That's why the localism problem can't be fixed overnight and why the
issues can't be cordoned off in a single "localism" proceeding. Localism
must infuse everything we do---including, perhaps surprisingly, our
choice of engineering methodologies.

I reluctantly concur in these items because they arguably adhere to
existing Commission precedent. But we can and should revisit our
technical and allotment rules as they relate to localism, some of which
are raised here (including the more general policies regarding distant
FM translators raised in *Berlin*). The localism dam may have been
breached, but that doesn't mean it's not repairable and all we can do is
watch the water level continue to rise. It's time to roll up our sleeves
and get to work.

[^1]: 47 U.S.C. § 155(c)(4).

[^2]: 47 C.F.R. § 1.115.

[^3]: In the relevant Kansas City market, through subsidiaries, Entercom
    controls nine radio stations and CBS controls four. *See*
    Application for Review at 1 n. 1.

[^4]: According to the Commission's database, the station has again
    changed its call letters and is currently operating as KCJK(FM), but
    we use herein the former call letters KFME-FM.

[^5]: The Application for Review was filed on April 9, 2004. The
    Applicant filed an Opposition on April 26, 2004, and Appellants
    filed a Reply on May 11, 2004.

[^6]: *See* Public Notice, *Broadcast Actions,* Report No. 44978 (rel.
    May 4, 2001).

[^7]: Appellants explain in their Application for Review that public
    notice of acceptance of the Modification Application appeared on
    Friday, April 27, 2001 (*see Broadcast Applications,* Report No.
    24973 (rel. Apr. 27, 2001)), and because of difficulties accessing
    the exhibits electronically, Appellants by letter that day sought a
    deferral of the processing of the Application. The Applicant's
    counsel provided the exhibits to Appellants by fax on Monday, April
    30, 2001. On May 1, 2001, Appellants notified the Commission in
    writing of their preliminary concerns and requested until May 3,
    2001 to file a detailed objection. The Bureau granted the
    Modification Application on May 1, 2001, as announced publicly on
    May 4, 2001 (*see supra* note 6). Appellants submitted their
    Petition for Reconsideration on May 4, 2001. *See also infra* note
    32 regarding Appellants' party status in this proceeding.

[^8]: 47 C.F.R. § 73.315(a). Under longstanding Commission policy, the
    Commission accepts proposals that would cover at least 80 percent of
    the FM station's community of license with a predicted 70 dBu signal
    as substantially in compliance with the rule, and not requiring a
    waiver. *See Barry Skidelsky*, Order, 7 FCC Rcd 5577 (1992).

[^9]: 47 C.F.R. § 73.313(e).

[^10]: *See* Staff Decision at 2 (citing *Infinity Broadcasting
    Operations, Inc.,* Memorandum Opinion and Order, 19 FCC Rcd 4216
    (2004) (citations omitted)).

[^11]: *Id.*

[^12]: Application for Review at 2 (citing 47 C.F.R. § 1.115(b)(2)(iv)).

[^13]: *Id.*

[^14]: Appellants explain that they did not contest the application for
    license to cover the modified facilities which was granted on March
    15, 2004 (FCC File No. BLH-20010620AAM) because, as they correctly
    observe, if the Commission were to grant the Application for Review
    and rescind grant of the Modification Application, grant of the
    license application would be rendered moot. *See id.* n. 2.

[^15]: 47 C.F.R. § 1.115(b)(2) (the application for review must argue
    that the staff's decision pursuant to delegated authority (i)
    conflicts with a relevant "statute, regulation, case precedent, or
    established Commission policy," (ii) ''involves a question of law or
    policy which has not previously been resolved by the Commission,''
    (iii) ''involves application of a precedent or policy which should
    be overturned or revised,'' (iv) makes "an erroneous finding as to
    an important or material question of fact,'' and/or (v) contains a
    "prejudicial procedural error").

[^16]: *See Letter to Mark N. Lipp, Esq* (MB Aug. 8, 2002) (finding that
    the applicant's supplemental contour study failed to show that the
    terrain in question departs widely from the average terrain).

[^17]: "Delta-h" is a measure of terrain roughness that was adopted by
    the Commission in 1975, although its use in submissions by TV and FM
    applicants relying on standard predicted contours was subsequently
    suspended, with use of the delta-h factor reserved as an option in
    certain circumstances, *e.g.,* where the accuracy of predicted
    contours is in doubt and a supplemental coverage study is submitted
    for consideration. *See Amendment of Sections 73.333 and 73.699,
    Field Strength Curves for FM and TV Broadcast Stations; Amendment of
    Part 73 of the Rules Regarding Field Strength Measurements for FM
    and TV Broadcast Stations,* Report and Order, 53 FCC 2d 855 (1975);
    *Temporary Suspension of Certain Portions of Sections 73.313,
    73.333, 73.684 and 73.699 of the Commission's Rules and
    Regulations,* Order, 56 FCC 2d 749 (1975); *Effects of Terrain on
    Signal Propagation, Evaluation*, 42 Fed. Reg. 25736 (May 19, 1977).

[^18]: *See, e.g.,* Application for Review at 11.

[^19]: ^?^ *See id.* at Exhibit A.

[^20]: *See* OET Report ("Based on the standard prediction method in
    §73.313 of the FCC Rules, the predicted 70 dBu contour distance is
    48 km . . . \[whereas the alternative analysis shows that\] the 70
    dBu contour is near the radio horizon at about 65 km."); *KMAJ
    Decision* at 2 n. 4 (setting forth two alternative guidelines,
    including the 30 percent guideline).

[^21]: This Memorandum, dated April 27, 2001, was marked "Non-Public for
    Internal Use Only" but is nonetheless part of the record of this
    proceeding, as it was attached by the Applicant to its Opposition to
    Petition to Deny filed May 29, 2001 (as Attachment 4) and is
    referenced in Appellants' Reply to Opposition to Application for
    Review at 4 n. 5.

[^22]: *See Amendments of Parts 73 and 74 of the Commission's Rules to
    Permit Certain Minor Changes in Broadcast Facilities without a
    Construction Permit,* Report and Order, 12 FCC Rcd 12371, 12401-03
    (1997) (citing, for FM stations, 47 C.F.R. §§ 73.333 and 73.313(e))
    (TV citations omitted) (subsequent history omitted).

[^23]: *See id.,* 12 FCC Rcd at 12403.

[^24]: *Id*.

[^25]: Application for Review at 9.

[^26]: *Id.*

[^27]: *See id.*

[^28]: *Id.* at iii.

[^29]: *See* note 8 *supra*.

[^30]: *Id.*

[^31]: *See* Staff Decision at 1 n.1 (listing the various
    pleadings/materials submitted by Appellants and considered by the
    staff). In considering the merits of Appellants' arguments, the
    staff also implicitly accorded Appellants status as parties in this
    proceeding without addressing whether they met the "aggrieved party"
    test under 47 C.F.R. 1.106(b)(1). We find this constituted harmless
    staff error. Both of the Appellants satisfy that test and therefore
    had standing to file a petition for reconsideration. First, as
    competitors in the Applicant's market, the Appellants' interests
    have been adversely affected by the Staff Decision. *See Cloud Nine
    Broadcasting, Inc.,* Letter, 10 FCC Rcd 11555, 11556 (1995) (*"Cloud
    Nine"*) (citing *FCC v. Sanders Bros. Radio Station,* 309 U.S. 470,
    477 (1940) and *Rainbow Broadcasting Co.,* Memorandum Opinion and
    Order, 9 FCC Rcd 2839, 2844 n.24 (1994)(subsequent history
    omitted)). Second, Appellants were legally precluded from filing a
    petition to deny in the initial stage of this proceeding, as
    petitions to deny do not lie against minor modification
    applications. *See* 47 C.F.R. §§ 73.3580(a)(1) and 73.3584(a). As
    indicated above (*see supra* note 7), Appellants submitted
    notification of their concerns about the Application, which is
    appropriately treated as an informal objection under 47 C.F.R. §
    73.3587. Accordingly, we find that Appellants "participated in our
    processes to the fullest extent permitted" and have met the good
    cause standard of 47 C.F.R. § 1.106(b)(1). *Cloud Nine,* 10 FCC Rcd
    at 11556.

[^32]: *See Wendell and Associates,* Memorandum Opinion and Order, 14
    FCC Rcd 1671, 1679 (1998) ("It is clear from the staff's order that
    it considered \[the objector's\] pleadings, which is all that was
    required").

[^33]: Staff Decision at 2 (citing OET Memo).

[^34]: On the other hand, one cannot glean much comfort from the
    station's branding on its website as "Jack FM Kansas City" and the
    fact that the station's main studio is located some 50 miles from
    Garden City in Mission, Kansas.