Before the

FEDERAL COMMUNICATIONS COMMISSION

Washington, D.C. 20554

In re Application of )

)

WBBK BROADCASTING, INC. )

Radio Station WFDL (FM) )

Lomira, Wisconsin ) File No. BPH-971210IE

)

Application to modify facilities including )

channel classification and transmitting )

location )

# MEMORANDUM OPINION AND ORDER

**Adopted: February 29, 2000** **Released: March 22, 2000**

By the Commission:

1\. The Commission has before it an Application for Review filed June
24, 1999 by RBH Enterprises, Inc. ("RBH").[^1] RBH requests review of a
May 25, 1999 letter decision by the Assistant Chief, Audio Services
Division, Mass Media Bureau ("Bureau") denying RBH's Informal Objection
and granting the application of WBBK Broadcasting, Inc. ("WBI") for a
"one-step" minor change to the facilities of station WFDL (FM), Lomira,
Wisconsin.[^2] For the reasons set forth below, the Application for
Review is denied.

2\. [Background.]{.underline} On December 10, 1997, WBI filed a
"one-step" application to upgrade WFDL from Channel 249A to Channel
249C3, and to relocate the station's transmission facilities. Citing the
*Suburban Community Policy, the Berwick Doctrine, and the de Facto
Reallocation Policy* ("*Suburban Community*"), 93 FCC 2d 436 (1983), RBH
objects to WFDL's modification application, claiming that the proposal
would violate 47 U.S.C. §307(b) because WBI allegedly "does not provide
a local program service to \[the community of license\] worthy of the
name by any objective evaluation." Application for Review, ¶6. RBH
contends that WFDL does not provide programming for Lomira residents,
and charges WBI with failing to submit a programming proposal with its
modification application. The Bureau denied RBH's Informal Objection,
concluding that WBI was not required to file a programming statement
with its minor change application, and that RBH had failed to provide
any evidence to support its claim that WBI would not serve its community
of license.

3\. In its Application for Review, RBH renews its contention that WFDL
would not adequately serve its community of license with the proposed
facilities, and therefore RBH concludes that grant of the subject
application would conflict with §307(b) of the Communications Act of
1934, as amended. Should the Commission conclude that the application is
consistent with the policies it has developed to advance §307(b), RBH
claims that those policies are in conflict with the statute. Finally,
RBH contends that the Commission has a duty to examine "the efficacy of
the subject policy," and that as an aggrieved party-in-interest it has
the right to object to a minor change application under these
circumstances. [^3]

4\. [Discussion]{.underline}. RBH's reliance on *Suburban Community* is
misplaced. In *Suburban Community* the Commission eliminated certain
policies that it concluded had frustrated rather than furthered the
goals of §307(b). It concluded that its obligation to implement those
goals would be satisfied, i.e., the Commission will presume that an
applicant intends to serve its designated community of license, where
the applicant (1) provides city grade service to the designated
community; (2) locates its main studio in compliance with 47 C.F.R.
§73.1125; and (3) proposes programming that will serve the designated
community. While RBH points out that WFDL's main studio is located in
Fond du Lac rather than Lomira, it concedes that this nonetheless
complies with §73.1125;[^4] likewise, RBH concedes that WBI proposes to
provide a city grade signal to Lomira. Thus, there is no issue as to the
first two *Suburban Community* criteria.

5\. As to the third criterion, RBH alleges that the application contains
"no proposal...to provide programming," and asserts that WBI's current
operations provide no evidence that WFDL will use upgraded facilities to
provide local service.[^5] RBH's contention fails on both counts. RBH
cites *Roberts Communications, Inc*., 11 FCC Rcd 1138 (1996), as support
for the proposition that "an applicant seeking to change facilities
must...reaffirm that it will continue to provide programming to its
community of license." 11 FCC Rcd, 1139-40. WBI's modification
application did not include a programming proposal. However, General
Instruction A to the relevant version of Form 301 specifically directs
an applicant for a change in facilities *not* to file Section IV-A
(Program Service Statement). *See* Instructions for FCC Form 301, April
1996. As indicated in *Suburban Community*, the Commission presumes that
an applicant for a new station construction permit or a proposed station
buyer will meet its local programming obligations on the basis of
certain application representations and the satisfaction of certain
technical requirements. As we also noted in *Suburban Community*, an
alleged failure actually to serve the community of license is more
appropriately addressed in the context of a license renewal
challenge.[^6] The filing of a modification application to enhance
service does not put at issue this programming presumption. To the
extent that *Roberts Communications* can be read to require that an
applicant for minor modification must file a new program service
statement, it is overruled.

6\. Moreover, as for RBH's contention regarding WBI's current service,
we must agree with the Bureau that RBH has failed to meet its burden of
raising a substantial and material question of fact. *See* 47 U.S.C.
§309(d). The evidence set forth in RBH's Informal Objection consists of
either vague and conclusory statements regarding WFDL's studio
facilities and programming policies, unsupported by credible evidence,
or statements which, while true, are irrelevant. While RBH provides
transcripts of a sample of WFDL newscasts from "late February and early
March, 1998" to support its claim that WFDL covered no local news, it
fails to disclose its sampling methodology, does not document whether
the transcripted passages constituted the entire newscasts, and fails
even to specify the dates and times of the newscasts presented.[^7] The
mere fact that a small, selected sample of WFDL's newscasts contains no
Lomira news does not demonstrate that the station failed in its
obligation to provide relevant programming to Lomira residents.

7\. In any event, WBI has reaffirmed its commitment to local service in
the papers it filed in this proceeding.[^8] WBI's documentation of its
coverage of local high school sporting events, participation in
community events, remote broadcasts from Lomira businesses, and its
awards for coverage of a major local news event (a train
derailment),[^9] demonstrate that WFDL has provided programming that
serves the needs of the station's community of license. Moreover, we
note that it is not necessarily inconsistent with WFDL's local service
obligation for the station to provide programming for the larger
community of Fond du Lac. "'Even if it's true that the station intends
to compete in the metropolitan market, this does not mean that it would
not be able to offer programming responsive to the needs of this smaller
locality.'" *Suburban Community*, *supra*, 93 FCC2d at 451 (quoting *In
the Notice of Proposed Inquiry and Proposed Rule Making in BC Docket
80-130*, 45 Fed. Reg. 26390 (April 18, 1980)).

8\. RBH requests that we decide whether the standards the Commission
uses to implement §307(b) in the context of facility modification
applications violate the Communications Act, and whether the agency has
a duty to examine "the efficacy" of this policy. We believe our
application processing policies are fully consistent with §307(b).
Where, as here, an applicant already provides city-grade coverage to its
community of license, and proposes a modification that would provide
even greater coverage, this is *prima facie* in the public interest and
clearly advances the goals of §307(b). RBH wholly fails to show how our
approval of WBI's application undermines those goals. Also, while we
generally try not to review policies of broad applicability in an
adjudicatory proceeding such as this "where third parties, including
those with substantial stakes in the outcome, have had no opportunity to
participate, and in which we, as a result, have not had the benefit of a
full and well-counseled record,"[^10] we do recognize our responsibility
to reevaluate regulatory standards over time and to modify policies in
response to changes in the broadcast industry. *See, e.g*., *Office of
Communication of the United Church of Christ v. FCC*, 707 F.2d 1413,
1425 (1983). However, RBH has failed to make a showing that convinces us
of the need to require programming statements of minor change
applicants.

9\. Accordingly, in light of the above discussion, IT IS ORDERED that
the Application for Review filed on June 24, 1999 by RBH Enterprises,
Inc. IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Román Salas

Secretary

[^1]: WBBK Broadcasting, Inc. filed an opposition to the application for
    review on July 7, 1999.

[^2]: *Letter to WBBK Broadcasting, Inc.*, Reference 1800B3-MFW
    (Assistant Chief, Audio Services Division, Mass Media Bureau, May
    25, 1999).

[^3]: This last issue is meritless. RBH has objected to the application.
    The staff and now the Commission have considered RBH's objections in
    accordance with Commission rules. Since we have considered RBH\'s
    arguments on the merits, we need not address its arguments as to
    whether it has standing to object.

[^4]: Application for Review, ¶¶6-7. While in its Informal Objection RBH
    accused WFDL of failing to have a local Lomira telephone number, it
    has not rebutted WBI's statement that Lomira and Fond du Lac are in
    the same local calling area, and that moreover WFDL has a toll-free
    number.

[^5]: Informal Objection, ¶7.

[^6]: *Suburban Community*, 93 FCC 2d at 456.

[^7]: Reply to Opposition, Filed March 16, 1998, Attachment to
    Declaration of Randal R. Hopper.

[^8]: Opposition of WBI to Informal Objection, ¶¶8-9.

[^9]: While RBH points out that the derailment was also covered by
    stations across Wisconsin, the fact that WFDL's coverage of this
    major local news event won two broadcast awards underscores its
    service to the community of license.

[^10]: *Capital Cities/ABC, Inc.*, 11 FCC Rcd 5841, 5888 (1996).