**Before the**

**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, D.C. 20554**

In the Matter of )

)

**ALEXANDER BROADCASTING, INC**. ) Filed January 30, 2004

) Facility ID No. 64556

Station WRCR(AM) )

Spring Valley, New York )

)

For Major Change in Facilities )

# MEMORANDUM OPINION AND ORDER 

**Adopted: August 17, 2006** **Released: August 22, 2006**

By the Commission:

1\. We have before us a December 16, 2004, Application for Review filed
by Alexander Broadcasting, Inc. ("Alexander"), licensee of WRCR(AM),
Spring Valley, New York. Alexander seeks review of the staff's November
16, 2004, denial of its request for waiver of Section 73.30(c) of the
Commission's Rules[^1] and waiver of the exclusion of AM expanded band
major change applications from the AM Auction No. 84 filing window.[^2]
For the reasons set forth below, we grant review, waive certain
Commission rules, and direct the Media Bureau to open a limited filing
window to permit the filing of applications for a new AM station on 1700
kHz. Applications filed in the window will be required to meet certain
requirements that are designed to ensure that the new station will meet
critical safety and informational needs of Rockland County residents.

**I. BACKGROUND**

2\. On November 6, 2003, the Media Bureau ("Bureau") and the Wireless
Telecommunications Bureau announced an auction filing window.[^3] The
window was available for construction permit applications for new AM
stations and major modifications to authorized AM facilities, as defined
in Section 73.3571(a)(1) of the Commission's Rules.[^4] The public
notice specifically stated that the window "will not be available for
frequencies in the AM expanded band or for major changes in existing AM
expanded band stations,"[^5] citing a previously released February 1,
2002, public notice, which instituted a freeze on the filing of all AM
expanded band major change applications.[^6]

3\. Alexander, licensee of WRCR(AM), 1300 kHz, Spring Valley, NY, filed
an application to modify its facilities to operate on 1700 kHz with
increased daytime and nighttime power. Recognizing that the *Auction No.
84 Window Public Notice* specifically precluded the filing of AM
expanded band applications in the Auction No. 84 filing window,
Alexander sought waiver of the expanded band application freeze and
requested acceptance of its application.[^7] Alexander supported its
waiver request by arguing that technical AM protection requirements
foreclose its ability to improve coverage on its current standard band
frequency. It further observed that the application neither specified a
new community of license nor proposed relocation of the station
facilities a substantial distance. Thus, Alexander contended, the
proposal did not raise the principal concerns expressed by the
Commission in adopting its freeze on the filing of AM expanded band
major change applications. Alexander based its waiver request chiefly on
the fact that station WRCR(AM) is located near New York's Indian Point
nuclear power plant, a possible terrorist target and potential source of
a serious radiological emergency.[^8] It contended WRCR(AM)'s current
facilities would be unable to reach significant populations in and
around Rockland County with emergency information in the event of an
accident or terrorist act at the Indian Point nuclear facility.
Alexander urged the Commission to waive various rules to permit the
processing of its modification application, which specifies facilities
that could better meet the critical safety and security needs of Spring
Valley and Rockland County residents.

4\. As part of a wide ranging rulemaking proceeding to revitalize the AM
service, the Commission adopted rules to manage the expanded band
migration process to "maximize the benefits to the AM service as a
whole."[^9] Recognizing the Commission's commitment to systematically
manage expanded band licensing, the staff found that neither Alexander's
alleged inability to improve station coverage in the lower band nor the
limited nature of its request, which would involve no change in its
community of license or authorized transmitter location, constituted
special circumstances warranting waiver of the expanded band application
filing freeze. It further determined that granting Alexander's freeze
waiver and unilaterally accepting its application would preclude other
AM stations from competing for expanded band spectrum, and thus would be
fundamentally unfair to parties potentially interested in expanded band
authorizations. Notwithstanding the public safety and security arguments
advanced by Alexander, the staff concluded that the public interest as a
whole would be best served by denying the waiver.

5\. On review, Alexander contends that its application was filed in
response to significant and substantial concerns expressed by public
officials at the local, state, and national levels over the inability of
Station WRCR(AM) to reach areas and populations in and around Rockland
County, New York, with emergency messages, in the event of an incident
at the nearby Indian Point facility. Alexander argues that it maintains
strong bipartisan support for improving its current, severely restricted
coverage, which provides no protected nighttime service to Spring
Valley. Alexander contends that WRCR(AM)'s signal coverage would improve
dramatically if the Commission authorized operations on 1700 kHz.
Moreover, Alexander argues that grant of its application would permit
WRCR(AM) to provide a first local nighttime service to Spring Valley and
"correct the dearth of local radio service in Rockland County."[^10]
Alexander requested that the Commission direct the Media Bureau to take
"whatever additional actions may be required to redress the perceived
unfairness to other 'parties' interested in such filings, including the
use of competitive bidding in the event of mutually exclusive
applications for such facilities."[^11]

**II. DISCUSSION**

6\. A waiver is appropriate only if special circumstances warrant a
deviation from the general rule and such deviation will serve the public
interest.[^12] Moreover, when it waives a rule the Commission must
explain why the waiver would not undermine the policy served by the
rule.[^13] We believe that the public interest is served by granting
review and permitting Alexander to compete for a frequency in the AM
expanded band. Several factors warrant divergence from our AM expanded
band licensing procedures. We agree with Alexander that the public
safety issues it has identified are substantial and real. We also
recognize the unique and invaluable public service that broadcast
stations have provided and can be expected to provide in meeting the
emergency and public safety programming needs in the areas they serve.
Adequate broadcast service is particularly critical in areas in which
potential terrorist targets are located and in responding to
catastrophic events. Thus, we believe that waiver is warranted to permit
the licensing of a station that could provide full-time local emergency
radio service to Rockland County residents who would be at great risk in
the event of a radiological emergency at the Indian Point facility.[^14]
Further, we believe that the potential enhancement of broadcast service
to the area that government officials have determined to be of primary
concern should be accorded significant weight.[^15] Therefore, we waive,
to the extent indicated below, the AM expanded band major change
application filing freeze announced in the *AM Freeze Public Notice,* AM
Auction No. 84 procedures, and Sections 73.30 and 73.35 of the
Commission's Rules to permit consideration of applications which would
ensure adequate local radio service to this potentially at-risk
population.[^16]

7\. We recognize that our decision to grant review and waive various
rules will not advance the interference reduction policies adopted in
the *AM Improvement Order*. These include rules mandating the use of
interference reduction criteria to award AM expanded band
authorizations[^17] and to conduct AM expanded band licensing on a
nationwide basis.[^18] Although the decision does not advance the
Commission's *AM Improvement Order* rules and policies, it will not
undermine the Commission's ability to improve the AM service as a whole
by systematically relocating AM stations based on the degree to which
they would reduce interference in the standard band.

8\. While we grant the Alexander waiver request, we find that the staff
properly concluded that the Commission should provide an opportunity for
the filing of competing applications. This requirement is based
primarily on Section 309(b) of the Act[^19] and the *Ashbacker*
doctrine.[^20] Under *Ashbacker,* the Commission may not "grant one
mutually exclusive application without holding the comparative hearing
required by the Communications Act."[^21] The D.C. Circuit also has held
that "*Ashbacker* rights inhere in potential applicants whose right to
file a timely competing application is frustrated by a Commission freeze
order."[^22] In *Bachow*, the Court upheld the dismissal (as part of a
transition to competitive bidding) of applications that were not "ripe"
because they were not filed at least 30 days before the freeze date. The
Court explained that the Act "forbids the Commission to grant an
application 'earlier than thirty days following issuance of public
notice by the Commission of the acceptance for filing of such
application or of any substantial amendment thereof.'"[^23] It treated
this provision as guaranteeing the right to file competing applications
for a 30-day period. It explained that the 30-day "ripeness" period was
necessary because without it, "the Commission could have granted
applications filed less than 30 days before the freeze date, abrogating
the *Ashbacker* rights of prospective applicants who could have filed
timely competing applications but for the freeze."[^24] Accordingly, we
conclude that the Commission should provide an opportunity for
prospective applicants to file competing applications for facilities
which meet the requirements set forth below.[^25] We also find that
providing an opportunity for the filing of mutually exclusive
applications will best effectuate our competitive bidding policies.

9\. Therefore, upon finality of this application proceeding, we direct
the Bureau to open a limited, supplemental window for Alexander and
other interested parties to file applications for facilities that would
operate on 1700 kHz. To ensure that the station will serve the critical
public safety needs of those residents within the Indian Point EPZ
designated by emergency authorities, applicants must specify a community
of license within Rockland County, and the proposed facilities must, at
a minimum, provide service to (*i.e*., place a daytime 2.0 mV/m strength
contour and a nighttime interference free contour over) more than 50
percent of the persons residing in the Rockland County portion of the
Indian Point EPZ.[^26] To ensure that pertinent emergency information is
conveyed, the station ultimately receiving an authorization must
transmit all state and local EAS alerts and participate in state and
local EAS programs.

10\. We will require the use of competitive bidding if any mutually
exclusive applications are filed within the window. To the extent
mutually exclusive applications are filed, they will be consolidated
with other pending mutually exclusive AM groups and included in AM
Auction No. 84.[^27] Competing proposals must comply with current AM
expanded band technical rules.[^28] The Media Bureau will provide
detailed instructions for filers in a forthcoming public notice.

**III. CONCLUSION**

11\. For the foregoing reasons, the Application for Review and request
for waiver filed by Alexander Broadcasting, Inc. IS GRANTED to the
extent indicated herein.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

[^1]: 47 C.F.R. § 73.30(c).

[^2]: *Letter to Roy R. Russo, Esq*., Ref. No. 1800B3-LAS (MB Nov. 16,
    2004).

[^3]: *AM New Station and Major Modification Auction Filing Window;
    Minor Modification Application Freeze*, Public Notice, 18 FCC Rcd
    23016 (MB/WTB 2003) ("*Auction No. 84 Window Public Notice*") (DA
    03-3532). The *Auction No. 84 Window Public Notice* described
    procedures and provided instructions for the electronic filing of
    FCC Form 175 applications. The window opened on January 26, 2004,
    and closed on January 30, 2004.

[^4]: 47 C.F.R. § 73.3571(a)(1).

[^5]: *Auction No. 84 Window Public Notice*, 18 FCC Rcd at 23017. AM
    expanded band stations operate on one of the ten channels in the
    1605-1705 kHz band. *See* 47 C.F.R. § 73.30.

[^6]: *Freeze Announced on the Filing of AM Expanded Band Major Change
    Applications*, Public Notice, 17 FCC Rcd 1806 (MMB 2002) ("*AM
    Freeze Public Notice*") (DA 02-239).

[^7]: Alexander also sought waiver of 47 C.F.R. § 73.30(c), the rule
    that requires the filing of a petition for allotment for an AM
    expanded band frequency, and provides such petitioners for the
    expanded band allotments 60 days from the awarding of the allotment,
    to file an application for construction permit. Furthermore, because
    applicants were unable to electronically file expanded band
    applications during the AM Auction No. 84 filing window, Alexander
    transmitted a paper-filed FCC Form 175 application, which included
    Section I and the Tech Box of Section III-A of FCC Form 301, and
    separately requested waiver of the electronic form filing
    requirements. Finally, Alexander requires a waiver of 47 C.F.R. §
    73.30(b), which requires the Commission to license stations in the
    AM expanded band based on the extent to which the abandonment of the
    station's lower band facility would yield the greatest interference
    reduction improvements. 47 C.F.R. § 73.35 sets forth the methodology
    for calculating a station's "improvement factors."

[^8]: Indian Point is a nuclear power energy generation facility, owned
    and operated by Entergy Nuclear Northeast. The plant is located in
    Buchanan, New York, on the east bank of the Hudson River in
    Westchester County, close to portions of Rockland, Putnam and Orange
    Counties. *See generally* "Community Emergency Planning for Indian
    Point Guide," Rockland County, 2005-2006.

[^9]: *See Review of the Technical Assignment Criteria for the AM
    Service*, Report and Order, 6 FCC Rcd 6273, 6277 (1991) (subsequent
    history omitted) ("*AM Improvement Order*"). The Bureau's
    implementation of the AM expanded band application freeze was a
    component of this broad course of action. Concerned that the
    continued acceptance of AM expanded band applications might limit
    opportunities for additional expanded band stations, the Bureau
    stated that a freeze would best "preserve the rights of potential
    applicants for new expanded band stations and the opportunity to use
    competitive bidding procedures to award these authorizations." *AM
    Freeze Public Notice*, 17 FCC Rcd at 1806.

[^10]: Alexander Application for Review, attached September 7, 2004
    Request for Expedited Action at 2-3. Alexander also contends that
    there is no room for any increase in the strength of the WRCR(AM)
    signal on 1300 kHz in the AM broadcast band.

[^11]: Alexander Application for Review at 5.

[^12]: *Northeast Cellular Telephone Co. v. F.C.C.,* 897 F.2d 1164, 1166
    (D.C. Cir. 1990) (citing *WAIT Radio v. F.C.C.*, 418 F.2d 1153,
    1157-59 (D.C. Cir. 1969) ("*WAIT Radio*")). *See also Industrial
    Broadcasting Co. v. F.C.C*., 437 F.2d 680 (D.C. Cir. 1970) (heavy
    burden traditionally placed upon party seeking waiver to demonstrate
    that its arguments are substantially different than those carefully
    considered at the rulemaking proceeding); *State of New Hampshire*,
    11 FCC Rcd 5258 (WTB 1996) (waiver denied because applicant failed
    to meet heavy burden to operate in manner substantially different
    from Commission-adopted allocation scheme); *WAIT Radio*, 418 F.2d
    at 1159 ("Sound administrative procedure contemplates waivers, or
    exceptions granted only pursuant to a relevant standard . . . . The
    agency may not act out of unbridled discretion or whim in granting
    waivers anymore than in any other aspect of its regulatory
    function.").

[^13]: *WAIT Radio*, 418 F.2d at 1157 ("a general rule, deemed valid
    because its overall objectives are in the public interest, may not
    be in the 'public interest' if extended to an applicant who proposes
    a new service that will not undermine the policy, served by the
    rule, that has been adjudged in the public interest.").

[^14]: A portion of Rockland County lies within the Indian Point
    Emergency Planning Zone ("EPZ"), a federally designated area within
    a ten-mile radius of the nuclear facility. The Federal government
    set the ten-mile radius as the area requiring plans for protecting
    the health and safety in radiological emergencies. State and county
    planners and Entergy Nuclear Northeast have developed plans,
    including a public communications component, for Indian Point. We
    note that none of the stations that are listed in the Rockland
    County 2005-2006 Guide to Community Emergency Planning for Indian
    Point as participating in the State/Local Emergency Alert System
    ("EAS") plan and that provide service to the Rockland County portion
    of the Indian Point EPZ is licensed to a community in Rockland
    County. http://www.co.rockland.ny.us/ctyreports/english_emg.pdf.

[^15]: *See, e.g., Letters from The Honorable Nita M. Lowey, U.S. House
    of Representatives, New York, 18^th^ District (January 14, 2004)*;
    *The Honorable Eliot L. Engel, U.S. House of Representatives, New
    York, 17^th^ District (February 24, 2004) to Roy Stewart, Chief,
    Broadcast Licensing Division, Media Bureau.*

[^16]: 47 C.F.R. §§ 73.30, 73.35.

[^17]: *See* 47 C.F.R. § 73.35.

[^18]: *See* 47 C.F.R. § 73.30.

[^19]: 47 U.S.C. § 309(b).

[^20]: *Ashbacker Radio Corp. v. FCC,* 326 U.S. 327 (1945)
    ("*Ashbacker*").

[^21]: *Bachow Communications, Inc. v. FCC*, 237 F.3d 683, 689 (D.C.
    Cir. 2001) (citing *Ashbacker*, 326 U.S. at 327) ("*Bachow*").

[^22]: *Bachow*, 237 F.3d at 690 n.7 (citing *Kessler v. FCC*, 326 F.2d
    673, 686-88 (D.C. Cir. 1963) ("*Kessler*")).

[^23]: *Bachow*, 237 F.3d at 689 (quoting 47 U.S.C. § 309(b)).

[^24]: *Id*. *See Kessler*, 326 F.3d at 687-88 (Commission's refusal to
    process mutually exclusive applications that were filed after the
    freeze but were otherwise timely denied those applicants their
    *Ashbacker* rights).

[^25]: *See Amendment of the Commission's Space Station Licensing Rules*
    *and Policies*, 17 FCC Rcd 3847, 3871 (2002) (in concluding that
    first-come, first-served procedure for satellite applications meets
    the requirements of Section 309 and *Ashbacker*, explaining that
    "\[s\]o long as all applicants fully meeting all pertinent licensing
    requirements have an equal opportunity for initial consideration and
    an opportunity for hearing if their application is denied, there is
    no basis for concluding that the procedure denies any applicant its
    rights to a hearing under Section 309 of the Communications Act.").
    *See also* Conference Report to the Balanced Budget Act of 1997,
    Pub.L. No. 105-33, 111 Stat. 251 (1997), which provided guidance to
    the Commission on the procedures it should use in situations where
    no competing applications had been filed because the Commission had
    not yet opened a filing window. H.R. Conf. Rep. 217, 105th Cong. 1st
    Sess. 573 (1997) ("The conferees expect that, regardless of whether
    the \[singleton\] application was filed before, on or after July 1,
    1997, the Commission will provide an opportunity for competing
    applications to be filed, consistent with the Commission's
    procedures.").

[^26]: The Commission's rules require AM expanded band applications to
    specify Model 1 facilities. *See* 47 C.F.R. § 73.30 (c). 47 C.F.R. §
    73.14 defines a Model 1 facility as a station operating in the
    1605-1705 kHz band featuring fulltime operation with stereo,
    competitive technical quality, 10 kW daytime power, 1 kW nighttime
    power, non-directional antenna (or a simple directional antenna
    system). We do not waive this requirement.

[^27]: *AM Auction No. 84 Mutually Exclusive Applicants Subject to
    Auction*, Public Notice, 20 FCC Rcd 10563 (2005).

[^28]: AM expanded band stations must meet the following spacing
    criteria: co-channel, 800 kilometers; first adjacent channel, 200
    kilometers; second adjacent channel, 53 kilometers. *See AM
    Improvement Order*, 6 FCC Rcd at 6356. Additionally, the proposed
    site would be expected to be located within the standardized
    coordination distance of 500 kilometers of the Canadian border. As
    such, we call attention to the coordination provisions contained in
    the 1990 Agreement Between the Government of Canada and the
    Government of the United States of America Relating to the AM
    Broadcasting Service in the Band 1605 to 1705 kHz.