**Before the**

**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, D.C. 20554**

In re Application of )

)

LAKESIDE TELECOMMUNICATIONS, INC. ) File No. BPED-20000314ABN

) Facility ID No. 36428

)

For a Construction Permit to Modify )

NCE Class D Station WSSD(FM) )

at Chicago, Illinois )

# MEMORANDUM OPINION AND ORDER

**Adopted: December 28, 2004** **Released: January 5, 2005**

By the Commission:

1\. The Commission has before it the January 15, 2003, Application for
Review filed by Lakeside Telecommunications, Inc. ("Lakeside"), licensee
of noncommercial educational FM ("NCE FM") Class D Station WSSD(FM),
Chicago, Illinois and applicant for a construction permit to modify the
WSSD facilities. Lakeside seeks review of a January 3, 2003, Media
Bureau ("Bureau") decision ("Reconsideration Decision")[^1] denying
reconsideration of the July 31, 2001, staff action dismissing the
modification application ("Letter Decision").[^2] For the reasons
discussed below, we deny the Application for Review.

2\. **Background.** The Commission initially licensed Class D NCE FM
stations to serve limited areas with low-powered facilities.[^3] Over
time, concerns arose about the increasing demand for NCE FM spectrum and
the inherent inefficiencies of licensing 10-watt Class D stations. In
1978 the Commission concluded that the continued licensing of these
stations could impede the development of the emerging NCE FM radio
service.[^4] The *NCE FM Order* required Class D stations to migrate to
the non-reserved portion of the FM band or to Channel 200, where they
would be considered secondary operations. If neither of these options
was available however, a Class D station was required to move to a
reserved band channel with "the least preclusionary impact on other
potential stations."[^5] In addition, the Commission ended Class D
stations' protection against interference and imposed a permanent freeze
on the filing of applications for new Class D facilities. The rules
adopted in this proceeding also provided for exemption from these
relocation directives if the Class D station modified its facility to at
least the minimum Class A level of 100 watts ERP.[^6] Stations were
given until January 1, 1980, to file the necessary application to
upgrade their facilities to Class A status. WSSD did not file an
application for Class A facilities at that time.

3\. WSSD(FM) is currently licensed to operate on channel 201D (88.1 MHz)
with an ERP of 10 watts. On March 14, 2000, Lakeside filed the
above-referenced application to increase power to 240 watts and to
change WSSD(FM)'s status to a Class A station. The application was
accompanied by a request for waiver of Section 73.509 of the
Commission's rules[^7] because, as proposed, WSSD(FM) would receive
pervasive prohibited contour overlap from each of two co-channel
stations, WCRX(FM), Chicago, Illinois and WBMF(FM), Crete, Illinois.[^8]
With the exception of a small area falling entirely over water, WSSD's
proposed 60 dBu contour would be completely encompassed by WBMF's 40 dBu
interfering contour. Similarly, WCRX's 40 dBu contour would overlap 86
percent of the proposed WSSD service area. In its Letter Decision, the
staff concluded that Lakeside had failed to provide sufficient support
to justify a waiver of the Commission's core NCE technical rules and
dismissed Lakeside's application for failure to comply with Section
73.509(a), (b), and (d).[^9] Lakeside sought and the staff denied
reconsideration. The Bureau noted that the Commission has consistently
held that, absent compelling facts and circumstances, enhanced service
cannot overcome the longstanding prohibition against destructive
co-channel signal contour overlap.[^10]

4\. **Discussion.** When an applicant seeks waiver of a rule, its burden
is to plead with particularity the facts and circumstances which warrant
such action.[^11] Thus, an applicant for waiver "faces a high hurdle
even at the starting gate."[^12] While the Commission must consider
carefully all waiver requests, such requests must be supported by a
compelling showing in order to be granted.[^13] "A waiver is appropriate
only if special circumstances warrant a deviation from the general rule
and such deviation will serve the public interest."[^14] In its
Application for Review, Lakeside reiterates its assertion that there are
compelling reasons for waiver of Section 73.509 of the Commission's
rules to allow Station WSSD(FM) to upgrade to a Class A facility and
receive prohibited interference. In support of its request, Lakeside
claims that its proposal would increase the WSSD(FM) service area, would
allow it to continue to provide minority programming, and would not
create any undesirable precedent.[^15] We agree with the Bureau and find
waiver of Section 73.509 unwarranted on the facts of this case.

5\. Lakeside argues that grant of its Class A application will increase
the area served from 20 square kilometers to 50 square kilometers and
will increase the population served from 92,791 persons to 228,822
persons.[^16] According to Lakeside, almost all of these persons are
African-American residents of Chicago's inner city, and the station is
programmed and will continue to be programmed to cater specifically to
their needs.[^17] The Commission has consistently held, however, that
enhanced service cannot overcome the longstanding prohibition against
increases in harmful signal contour overlap,[^18] absent compelling
facts and circumstances.[^19] Here, Lakeside has made no showing that
the benefits of increased coverage outweigh the detriment of the nearly
100 % interference that will be received. Lakeside has also not shown
that the proposed gain area is underserved. When faced with a choice
between increased coverage on one hand, and lesser but adequate coverage
without prohibited interference on the other, the Commission favors the
latter.[^20] It is also well established that the Commission will not,
absent extraordinary circumstances, waive core technical rules based
upon ownership or programming considerations.[^21] Neither the pledge of
particular program offerings, nor the specific audience demographic of
Station WSSD(FM), justifies waiver of the Commission's interference
protection rules.

6\. As additional support for waiver, Lakeside contends that, since
grant of the application will not cause interference to any other
stations,[^22] Section 73.509 can be waived without creating undesirable
precedent. We reject this contention. The Commission's policy with
regard to prohibited NCE received overlap is well settled. Since 1981,
the Commission has delegated authority to staff to waive Section 73.509
"*when warranted*, provided such \[received\] interference did not
exceed roughly five percent of the proposed service area."[^23] A decade
later the Commission elaborated on this policy in *Educational
Information Corporation*, noting that this delegation "did not . . .
nullify the longstanding prohibition against occurrences of harmful
overlap, including overlap received."[^24] In so doing, it reaffirmed
the principle that Section 73.509 is designed both to prevent each NCE
station from causing harmful interference to other NCE stations and to
ensure interference-free service within each NCE station's own service
contour. The WSSD(FM) proposal is in fundamental conflict with this
policy. As Lakeside concedes, only 50 square kilometers of the 110
square kilometers within the station's protected service area would
enjoy interference-free service.

7\. In *EIC,* the Commission also reexamined the Section 73.509 waiver
policy. It explicitly rejected any relaxation of this policy for "more
serious" co- and first adjacent channel interference that can result in
the loss of service over a wide area. Thus, the Lakeside proposal is in
fundamental conflict with established Commission precedent. Grant of the
Lakeside application would turn this core technical requirement on its
head by authorizing a Class A station that would receive nearly 100
percent co-channel overlap from two other stations. We note, however,
that dismissal of the Lakeside application will not preclude WSSD from
continuing its present operation, nor does it preclude Lakeside from
filing a technically viable proposal using any non-interfering
channel.[^25]

8\. As a final matter, Lakeside claims that grant of this application
will correct an "historical anomaly."[^26] According to Lakeside, a 1983
renewal challenge engendered substantial confusion at the station and
caused it to miss the previously provided Class D filing period. In the
*NCE FM Order*, the Commission provided Class D stations with generous
opportunities to enable continued operation.[^27] For example, Class D
stations were given the opportunity to upgrade to Class A operations. To
benefit from this offer, Class D stations needed only to have filed the
requisite construction permit application by January 1, 1980. WSSD(FM)
did not avail itself of this opportunity and has not explained why a
renewal challenge raised more than three years after this filing
deadline has relevance to its failure to timely pursue this potential
relief. Moreover, Lakeside has not attempted to demonstrate that it had
any viable technical option to upgrade to Class A status or that the
Commission approved similarly defective technical proposals filed by the
January 1, 1980, deadline. We decline to grant WSSD's untimely request
for relief that would be well beyond that afforded any other Class D
station.

9\. **Conclusion.** For the foregoing reasons, Lakeside's Application
for Review **IS DENIED**.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

[^1]: *Letter to Lakeside Telecommunications, Inc.* (MB Jan. 3, 2003).

[^2]: *Letter to Lakeside Telecommunications, Inc.*, Ref. No. 1800B3-AED
    (MMB July 31, 2001).

[^3]: Unlike other FM stations whose facilities are based on an
    effective radiated power ("ERP") and a computed figure for height
    above average terrain, Class D stations were allowed 10 watts
    transmitter power output and were assumed to have an antenna height
    not exceeding 100 feet. *Changes In The Rules Relating To
    Noncommercial Educational FM Broadcast Stations, Second Report and
    Order*, 69 F.C.C.2d 240, 242 n.6 (1978) ("*NCE FM Order*"). *See* 47
    C.F.R. § 73.506(a)(1).

[^4]: *NCE FM Order*, 69 F.C.C.2d at 244-51; *see also Notice of
    Inquiry*, 5 F.C.C.2d 587, 588-89 (1966).

[^5]: *NCE FM Order*, 69 F.C.C.2d at 249.

[^6]: *See generally* 47 C.F.R. § 73.512.

[^7]: Lakeside Petition for Waiver and For Acceptance and Grant, dated
    March 14, 2000.

[^8]: A station would "receive" prohibited co-channel overlap when it
    proposes new or modified facilities that would result in an overlap
    of the proposed station's 60 dBu contour and the 40 dBu contour of a
    nearby co-channel station. *See* 47 C.F.R. § 73.509.

[^9]: 47 C.F.R. § 73.509(a), (b), (d).

[^10]: *See City of Atlanta (WABE-FM)*, 82 F.C.C.2d 125 (1980) (Section
    73.509 waiver denied based on level of interference received from
    both co-channel and third adjacent channel stations).

[^11]: *See Columbia Communications Corp. v. FCC*, 832 F.2d 189, 192
    (D.C. Cir. 1987) (citing *Rio Grande Family Radio Fellowship, Inc.
    v. FCC*, 406 F.2d 644, 666 (D.C. Cir. 1968) (per curiam)).

[^12]: *WAIT Radio v. FCC*, 418 F.2d 1153, 1157 (D.C. Cir. 1969) ("*WAIT
    Radio*").

[^13]: *Greater Media Radio Co., Inc.,* 15 FCC Rcd 7090 (1999) (citing
    *Stoner Broadcasting System, Inc*., 49 F.C.C.2d 1011, 1012 (1974))
    ("*Greater Media*").

[^14]: *Northwest Cellular Telephone Co. v. F.C.C.*, 897 F.2d 1164, 1166
    (D.C. Cir. 1990) (citing *WAIT Radio*, 418 F.2d at 1157).

[^15]: Lakeside contends that this is a unique situation because Station
    WSSD(FM) is a Class D station operating in a very crowded urban
    environment in Chicago, Illinois. Over time, Lakeside argues, other
    NCE FM allotments have been made and now the station is in danger of
    "becoming extinct." Lakeside Application for Review at 5.

[^16]: *Id.* This analysis impermissibly relies on the
    "undesired-to-desired" signal strength ratio method rather than the
    applicable contour overlap standards. *See infra* note 23.

[^17]: Lakeside Application for Review at 7.

[^18]: *See, e.g., Greater Media,* 15 FCC Rcd at 7101-7102; *City of
    Atlanta (WABE-FM)*, 82 F.C.C.2d at 127.

[^19]: *City of Atlanta (WABE-FM)*, 82 F.C.C.2d at 127 (denying overlap
    waiver when service to community of license is adequate and gain
    area is well served); *Open Media Corp.*, 8 FCC Rcd 4070, 4071
    (1993) (upholding staff action denying a § 73.509(a) waiver request
    where applicant failed to show that service to the community of
    license was deficient).

[^20]: *See City of Atlanta (WABE-FM)*, 82 F.C.C.2d at 127.

[^21]: *Open Media Corp.*, 8 FCC Rcd at 4071(citing U.S.C. § 303(f)).

[^22]: Lakeside Application for Review at 8.

[^23]: *Delegation of Authority to the Chief of the Broadcast Bureau to
    Waive Small Amounts of Interference Received by Non-Commercial
    Educational FM Proposals,* 49 R.R.2d 1524 (1981) (emphasis added).
    The Commission replaced this signal strength ratio methodology with
    a contour overlap standard in 1985. *Changes In The Rules Relating
    To Noncommercial Educational FM Broadcast Stations, Memorandum
    Opinion and Order,* MM Docket No. 20735, 50 Fed.Reg. 27954 (July 9,
    1985) ("*1985 Order*"). The signal strength ratio method served to
    identify the area in which the quality of service was predicted to
    fall below the minimally acceptable level. The contour overlap
    method identifies not only the area in which quality of service
    falls below the minimally acceptable level, but also the larger area
    in which the quality of service is predicted to be better than
    minimally acceptable overall, but nonetheless may be diminished for
    some listeners. *See Board of Education of City of Atlanta
    (WABE-FM)*, 11 FCC Rcd 7763, 7764 n.1 (1996). The *1985 Order* also
    modified the Bureau's delegated authority to grant waivers to
    conform to this new methodology. Specifically, such authority is now
    limited to 10 % "overlap" received compared to 5 % "interference"
    received under the old policy. *1985 Order,* 50 Fed. Reg. at
    27959-27960.

[^24]: *Educational Information Corp.*, 6 FCC Rcd 2207, 2208 (1991)
    ("*EIC*").

[^25]: *See* 47 C.F.R. § § 73.506(b); 73.512(d). *See also Quinnipiac
    College*, 8 FCC Rcd 6285, 6286 (1993) ("If Class D FM stations . . .
    are unable to . . . comply with applicable Commission rules, they
    may remain as secondary Class D FM stations and continue to provide
    the service they have always provided unless and until it causes
    interference to another primary NCE station.").

[^26]: Lakeside Application for Review at 8.

[^27]: *See* *supra* para. 2.