**DA 06-2253**

In Reply Refer to:

1800B3- PHD/RE

Released: October 31, 2006

Barbara K. Gardner, Esq.

Leventhal Senter & Lerman PLLC

2000 K Street, NW, Suite 600

Washington, DC 20006-1809

Harry F. Cole, Esq.

Fletcher Heald and Hildreth, P.L.C.

1300 North 17^th^ Street, 11^th^ Floor

Arlington, VA 22209

J. Christopher Redding, Esq.

Dow Lohnes PLLC

1200 New Hampshire Avenue, NW

Washington, DC 20036-2693

Mace J. Rosenstein, Esq.

Hogan & Hartson LLP

555 13^th^ Street, NW

Washington, DC 20004-1109

In re: KSDS(FM), San Diego, CA

Facility ID: 10542

> File No.BPED-19940802MA, as amended on November 17, 1994, and November
> 25, 1996

**Application for Modification of Facilities**

Dear Counsel:

This letter concerns the above-referenced application (the
"Application") of San Diego Community College District ("SDCCD"),
licensee of noncommercial educational ("NCE") Station KSDS(FM), San
Diego, CA. For the reasons set forth below, we deny various objections
to the Application, accept the referenced amendment, and grant the
Application with conditions.

**[Background.]{.underline}** On August 2, 1994, SDCCD filed an
application to increase the station's effective radiated power ("ERP")
from .83 kW to 3 kW at the licensed transmitter site. SDCCD subsequently
filed amendments to modify the facilities of Station KSDS from Class A
to Class B1, and to increase the station's ERP to 22 kW. On March 10,
1995, Bay City Television, Inc. ("Bay City") filed a petition to deny
the application. Bay City is the programming and sales representative
for Radio Televisión, S.A. de C.V. ("RTSA"), licensee of XETV(TV),
Channel 6, Tijuana, Baja California, Mexico.

KSDS is licensed to operate on Channel 202, 88.3 MHz. In its petition to
deny, Bay City alleged that the initially-filed application failed to
protect Channel 6 station XETV(TV) as required by Section 73.525 of the
Commission's rules.[^1] It also claimed that the proposed KSDS
facilities would result in "massive interference" to viewers in the
United States. Moreover, it contended that the Commission had previously
acknowledged the service that XETV(TV) provides in the border zone to
domestic viewers by granting the Section 325(c)[^2] application of Fox
Television Stations, Inc. to permit the retransmission of XETV(TV)
programming back into the U.S. It also alleged that the proposed KSDS
facilities did not protect a first-adjacent channel allotment on Channel
201A at Tecate, Mexico, as required by treaty.[^3] Finally, Bay City
claimed that grant of the application would violate Article 1202 of the
North American Free Trade Agreement.[^4]

SDCCD filed an opposition, contending that Bay City lacked standing to
file the petition to deny. It argued that Bay City or RTSA would have
standing to object to the application only on the basis of some
international treaty. It argued that NAFTA was inapplicable and that the
initially-filed application complied with the provisions of the 1992 FM
Broadcast Agreement.

On October 25, 1996, the staff issued a decision (the "Staff Decision")
denying in part and granting in part the Bay City petition to deny. It
found that Section 73.525 does not apply to foreign Channel 6 stations.
Moreover, it found that the 1992 FM Broadcast Agreement contains no
provision which requires a domestic FM station to protect the domestic
coverage area of a Mexican television station located near the border.
The Staff Decision also concluded that Section 1202 of NAFTA is
inapplicable to broadcast stations. Finally, it concluded that the
proposal did not fully protect the previously coordinated Tecate
allotment. The Staff retained the application in pending status to
permit SDCCD to file an amendment reducing ERP toward the Tecate
allotment.

On November 25, 1996, SDCCD filed the requested amendment. In April and
May 1997, various parties filed objections (the "1997 Objections") to
the grant of the application, as amended. These included a joint
objection from RTSA and Bay City (collectively "XETV"), and separate
objections from Fox Broadcasting Company ("Fox")[^5] and Cox
Communications, Inc. ("Cox").[^6] Each argued that the proposed facility
would cause interference to Station XETV(TV).

In May and June 1997, SDCCD filed oppositions to each of these
objections. It argued that the filings were untimely petitions for
reconsideration. It reiterated its contention that neither Section
73.525 of the rules nor the 1992 FM Broadcast Agreement is applicable.
It claimed that subscribers to a properly functioning CATV system should
not experience widespread interference from its proposed power increase.
Finally, it contended that cable system operators, XETV, and the Mexican
government could take additional steps not within SDCCD's control to
mitigate potential interference from KSDS operations at 22 kW.

On June 13, 1997, the International and Mass Media Bureaus jointly
issued a letter (the "Joint Bureau Letter") addressed to SDCCD, Fox, Bay
City, and Cox. The Joint Bureau Letter noted that the Mexican government
had intervened to express its objections based on potential interference
problems to XETV(TV). It also noted that the 1992 FM Broadcast Agreement
was inapplicable to the current dispute and that the Mexican objection,
in any event, was untimely. Nevertheless, to promote a satisfactory
resolution of this matter and as a show of good faith to the Mexican
government, the Joint Bureau Letter disclosed that the Mass Media Bureau
had agreed to withhold further action on the Application at the request
of the International Bureau. The Joint Bureau Letter urged the parties
to undertake discussions with a view toward reaching agreement on the
best technical methods for alleviating interference to Station XETV(TV)
reception in the San Diego area and the sharing of financial
responsibilities for implementing the methods which they identified to
alleviate interference.

Shortly thereafter, SDCCD and XETV commenced negotiations. Seventeen
months later, SDCCD and XETV agreed to a test plan. The November 6,
1998-dated "Plan for KSDS/XETV Testing" set forth the terms of a
voluntary testing and reporting program which SDCCD and XETV agreed to
"for purposes of settlement." On November 11, 1998, the Audio Service
Division issued the first of many special temporary authorizations
("STA") to SDCCD to operate at 3 kW ERP. Testing began in late November
1998. Two years later, on October 12, 2001, SDCCD and XETV completed the
testing process.

On February 21, 2002, SDCCD submitted an application for a construction
permit for the facilities specified in its then-in effect STA. SDCCD
requested a permanent power increase to 3 kW and proposed to operate
with a vertically polarized antenna.[^7] On March 5, 2002, the Audio
Division granted without additional conditions this construction permit
(the "3 kW Construction Permit"). On April 8, 2002, XETV filed a
petition for reconsideration of that action. That petition remains
pending.

Between September 2004 and January 2005, SDCCD and XETV each filed
several letters (the "2004-2005 Letters") with regard to the
Application. SDCCD, noting that the application had been pending almost
ten years, urged immediate action. It observed that Mexico had approved
the allotment in 1996 and that the February 27, 1997, Mexican objection
was untimely. It argued that the Mexican objection should have no impact
on the processing of the Application because its objection was outside
the scope of the 1992 FM Broadcast Agreement. It stated that the testing
had served no purpose and that the test results were immaterial to the
licensing decision before the Commission. It also contended that the
Commission's staff lacked the ability to bind the U.S. to new
international standards, and that only the Department of State and the
Executive Branch could pursue such changes. Finally, it contended that
the delay in acting on the application disserved the San Diego
community.

XETV responded that the pending test record must be decided "on the
record" prior to any action on the Application. In addition, XETV
claimed that SDCCD previously had accepted a condition to subject the
Application to bilateral negotiations. In support, XETV stated that KSDS
did not challenge the "condition" on the 3 kW Construction Permit which
stated that "\[p\]rocessing on \[the Application\] is awaiting
resolution of international matters." It argued that Section 1.110 of
the Commission's rules requires an applicant which objects to a
condition on its authorization to reject the construction permit within
30 days of the date of grant.[^8] Because SDCCD did not so act, XETV
contended that the Application accordingly became subject to U.S.-Mexico
negotiations. It also asserted that XETV(TV) is protected under 1962
U.S.-Mexico VHF Television Agreement. In addition, XETV rejected as
unpersuasive SDCCD's claim that KSDS should be considered more "local"
than XETV(TV). Finally, it renewed its claim that XETV(TV) is protected
under NAFTA.

**[Discussion.]{.underline}** **The 1997 Objections.** SDCCD contends
that the XETV, Cox, and Fox objections, which were filed approximately
five to six months after the Staff Decision, seek "reconsideration" of
the Staff Decision. Accordingly, SDCCD asserts that they are untimely.
We disagree. The Staff Decision retained the initially-filed application
in pending status. The rules permit any person to file informal
objections at any time "\[b\]efore FCC action on any application for an
instrument of authorization . . . ."[^9] Accordingly, we will consider
the 1997 Objections as timely-filed informal objections. The 1997
Objections argue that the Commission should deny the Application due to
the potential interference to XETV(TV) reception within the United
States. For the reasons set forth in the Staff Decision and more fully
below, we conclude that this contention is without merit.

**The 2004-2005 Letters.** XETV contends that before the Application can
be processed the "test proceeding . . . must be decided on the record."
We disagree. The "Plan for KDSD/XETV Testing" was crafted for the sole
purpose of reaching an amicable settlement of this interference dispute.
Eight years have elapsed since that plan was finalized. The testing
process was completed more than five years ago. XETV and SDCCD have
reached different conclusions on the results of those tests and the
2004-2005 Letters establish that this settlement effort has failed.
Moreover, it is unclear exactly on what basis the Commission could or
should "decide" this application proceeding on the testing "record."
This dispute lacks established treaty, statutory, or rule standards. We
conclude that further consideration of the test plan is
unwarranted.[^10]

We also conclude that XETV's Section 1.110 argument is without merit.
The 3 kW Construction Permit was issued out of a separate application
proceeding commenced in 2002.[^11] Although such language was wholly
unnecessary, the 3 kW Construction Permit condition makes this point
explicitly. "This construction permit is independent of the
\[Application\]," Accordingly, SDCCD's alleged failure to object to a
condition included in the 3 kW Construction Permit does not impose any
limitations on the authorization it seeks in this proceeding.

We also reject XETV's claim that the XETV(TV) signal is entitled to
protection from interference caused by U.S.-based FM transmissions to
viewers within the United States. Operation of U.S. FM broadcast
stations located in the common border area with Mexico, such as KSDS, is
governed by the 1992 FM Broadcast Agreement.[^12] The United States also
has an Agreement with Mexico governing the operation of television
broadcasting in the border area.[^13] There is currently no agreement
between the United States and Mexico governing interference situations
between FM radio stations and TV stations.

KSDS's proposed power increase fully complies with the terms of the 1992
FM Broadcast Agreement. That is, the proposed operation protects the
Mexican FM allotments and assignments pursuant to the 1992 FM Broadcast
Agreement.[^14] Under the terms of the current Agreements with Mexico,
XETV's Channel 6 operation is only entitled to protection from
interference caused by other U.S. licensed television operations in
accordance with the terms of the 1962 TV Agreement. Because that
agreement does not factor FM radio station operations into our
coordination analysis, XETV(TV) is not afforded protection from U.S. FM
stations.

Although there is no agreement between Mexico and the United States
governing the situation of interference between FM radio stations and TV
stations, our domestic rules recognize the possibility of such
interference relationships.[^15] As a practical matter, the United
States and Mexico typically cooperate to reach mutually agreeable
solutions on particular interference cases that fall outside of the
details of the specific agreements. In this case, we have been
particularly sensitive to Mexico's concerns about possible interference
to XETV(TV) service in the San Diego area. In view of this concern, we
have analyzed KSDS's proposed power increase pursuant to our domestic
rules concerning FM radio to television interference and find that
KSDS's proposed operation would not cause any interference to XETV(TV)
service in Mexico and would fully comply with the underlying principles
and terms of all relevant bilateral agreements.

Lastly, we must consider our obligations under Section 309(a) of the
Communications Act of 1934, as amended. Under this provision, the
Commission must determine whether grant of the Application would serve
the public interest. SDCCD argues that the Staff Decision previously
established that grant of the Application is in the public interest and,
therefore, that Section 309(a) mandates a grant in these circumstances.
It also notes that KSDS, one of only two public radio stations in the
San Diego market, provides local programming and promotes numerous local
performing arts events. It provides information regarding numerous
prestigious national awards that KSDS has received for its programming.
SDCCD urges grant of the Application to permit KSDS to attract new
listeners and new sources of funding.

XETV, in turn, claims that it provides "a more local service" to San
Diego than KSDS. It points to its coverage of local issues, the local
documentaries it has produced, its receipt of 30 Golden Mike Awards, 70
Emmy Statuettes, and national and regional Edward R. Morrow Awards. XETV
concludes that it "would be unconscionable for the FCC to permit
thousands of U. S. viewers of XETV FOX 6 to suffer interference in order
to permit a sevenfold power increase to a college radio station . . . ."
SDCCD disputes XETV's localism claim, noting that the station is
licensed to Tijuana.

We find merit in the arguments of both SDCCD and XETV. Both stations
provide valued and high-quality programming to San Diego residents.
Thus, our public interest analysis must take into account the impact of
the proposed KSDS facilities on both listeners and viewers. Although the
Application is not subject to the distance separation requirements of
Section 73.525, we cannot ignore the potential for interference in this
context. Importantly, this rule permits certain levels of interference
to domestic Channel 6 reception.[^16] Thus, the rule itself recognizes
that promoting additional NCE FM service can outweigh limited additional
amounts of Channel 6 interference. We believe that it is appropriate to
impose several conditions on the grant of the Application, consistent
with the rule's balancing approach.

KSDS will be limited to operations with a vertically polarized antenna.
It is our experience that this restriction can limit the extent of
Channel 6 interference without materially impacting radio service. We
will require KSDS to take reasonable steps to help viewers mitigate
Channel 6 interference. Moreover, SDCCD will be required to provide the
Audio Division of the Media Bureau with copies of any interference
complaints that it cannot resolve.[^17] We reserve the right to direct
SDCCD to take further additional steps to mitigate interference should
circumstances warrant. We note that San Diego has one of the highest
cable television household penetration rates in the nation.[^18] In this
regard, we clarify KSDS's responsibilities to protect cable television
reception. Under the Commission's FM blanketing interference rule,[^19]
KSDS must prevent interference to a cable system at the cable headend.
However, it is the responsibility of the cable system operator to
otherwise prevent ingress of a radio station signal into the cable
system. This includes preventing interference caused by unintentional
radiators such as cable television converter equipment and other
television terminal devices attached to the cable system.

[Conclusion]{.underline}. Accordingly, it is ordered, that the April 28,
1997, objection of Cox Communications, Inc., the May 6, 1997, objection
of Radio Televisión, S.A. de C.V. and Bay City Television, Inc., and the
May 20, 1997 objection of Fox Broadcasting Company ARE DENIED. It is
further ordered that the September 22, 1997, and January 5, 2005
objections of Radio Televisión, S.A. de C.V. and Bay City Television,
Inc. ARE DENIED. It is further ordered, that the November 25, 1996, San
Diego Community College District amendment IS ACCEPTED and the
application, as amended (BPED-940802MA) with vertical polarization only
IS GRANTED. This authorization is conditioned on San Diego Community
College District taking reasonable steps to assist XETV(TV) viewers in
San Diego in mitigating interference from KSDS(FM) operations in
accordance with this authorization and providing copies of all
interference complaints it cannot resolve to the Audio Division, Media
Bureau. In the event that San Diego Community College District desires
to reject any term or condition of this authorization, it shall file a
written request rejecting the grant as made in accordance with Section
1.110 of the Commission's rules.[^20] These actions are taken pursuant
to Sections 0.61 and 0.283 of the Commission's rules.[^21]

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

[^1]: 47 C.F.R § 73.525. Channel 6 stations broadcast at 82 -- 88 MHz.
    NCE FM stations use spectrum in the immediately adjacent 88 -- 92
    MHz band. This rule is designed to limit the interference which NCE
    FM stations may cause to Channel 6 stations operating in the same
    area.

[^2]: 47 U.S.C. § 325(c).

[^3]: *See 1992 Agreement Between the Government of the United States of
    America and the Government of the United Mexican States Relating to
    the FM Service in the Band 88-108 MHz,* August 11, 1992 (*"*1992 FM
    Broadcast Agreement").

[^4]: See U.S.-Can.-Mex., H.R. Treaty Doc. No. 159, 103^rd^ Cong.,
    1^[st]{.underline}^ Sess. (1993) ("NAFTA").

[^5]: XETV(TV) has been the Fox affiliate in the San Diego television
    market since 1986.

[^6]: Cox provides cable television service in San Diego County.

[^7]: *See* File No. BPED-20020219ABE.

[^8]: *See* 47 C.F.R. § 1.110.

[^9]: *Id.* § 73.3587.

[^10]: Assuming *arguendo* that SCDDC and XETV had agreed to undertake
    testing and reporting to permit the Commission to establish
    interference limits or standards for KSDS operations, we note that
    no data was submitted regarding the specific facility proposal now
    before us. The test plan did provide an opportunity for SDCCD to
    request KSDS testing at power levels exceeding 3 kW. SDCCD, however,
    did not do so. At this point, it seems extremely unlikely that any
    additional testing would lead to an amicable settlement whereby XETV
    would agree to such higher powered operations.

[^11]: *See* n.7, *supra.*

[^12]: *See* n.3, *supra.*

[^13]: *1962 United States-Mexico VHF Television Agreement*, April 18,
    1962.

[^14]: The proposal was coordinated with Mexico by letter dated April 9,
    1996. By letter dated July 10, 1996, Mexico's Secretaria De
    Comunicaciones Y Transportes ("SCT") accepted the proposal. The SCT
    subsequently withdrew the proposal because of concerns of possible
    interference to XETV operations in the United States.

[^15]: 47 C.F.R. § 73.525.

[^16]: *See id.* § 73.525(c) (permitting NCE FM interference to 3,000
    persons receiving Channel 6 service).

[^17]: Copies of complaints should be sent to Federal Communications
    Commission, Media Bureau, Audio Division, 445 12^th^ Street, NW,
    Washington, D.C. 20554, Attn: Dale Bickel, Room 2-A324.

[^18]: San Diego has the sixth highest cable penetration rate, at 85
    percent of all households, among all Nielsen Media Research
    Designated Market Areas. *See Broadcasting and Cable Yearbook 2006*,
    p. C-11 (2005).

[^19]: *See* 47 C.F.R. § 73.318.

[^20]: *Id.* § 1.110.

[^21]: 47 C.F.R. §§ 0.61 and 0.283