**DA 08-1741**

*In Reply Refer to:*

1800B3-TEC

Released: July 25, 2008

Joseph M. Di Scipio, Esq.

Fletcher, Heald & Hildreth, PLC

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

Arlington, VA 22209

Julia A. Follansbee, Esq.

Follansbee & Associates

61510 Cougar Trail

Bend, OR 97701

Re: **Hill & Glover Broadcasting, LLC** NEW(AM), Bend, Oregon

Facility ID No. 160230

File No. BMP-20070419ABG

**Application for Modified Construction Permit**

Dear Mr. DiScipio and Ms. Follansbee:

We have before us an application (the "Application") to modify the
authorized facilities of a new AM station in Bend, Oregon, filed by Hill
& Glover Broadcasting, LLC ("H & G") on April 19, 2007.[^1] We also have
Informal Objections to the Application by Ms. Julia A. Follansbee
("Follansbee"), filed on October 9, 2007 (the "October 2007 Letter"),
and April 22, 2008 (the "April 2008 Letter"). Follansbee argues that the
towers proposed in the Application would pose significant safety hazards
to pilots using Juniper Airpark ("Juniper"), a nearby, private-use
airport.[^2] For the reasons stated below, we deny the Informal
Objections and grant the Application.

**Background.** On April 19, 2007, H & G submitted the Application
proposing to construct three 199-foot[^3] towers for its authorized new
AM station in Bend, Oregon.[^4] We dismissed the Application on
September 5, 2007, because the towers would cause nighttime interference
in violation of Section 73.182 of the Commission's Rules (the
"Rules").[^5] H & G amended the Application to comply with Section
73.182 and submitted a Petition for Reconsideration and Request for
Reinstatement of Application *Nunc Pro Tunc* (the "Petition").[^6] We
granted the Petition and reinstated the Application on April 7, 2008,
requiring, however, that H & G respond to the October 2007 Letter.[^7]
Subsequent to the Application's reinstatement, Follansbee filed the
April 2008 Letter.

In the October 2007 Letter, Follansbee challenges a "Determination of No
Hazard to Air Navigation" (the "Determination") obtained by H & G from
the Federal Aviation Administration (the "FAA"). The Determination
states that H & G's towers "would not have a substantial adverse effect
on the safe and efficient use of navigable airspace by aircraft."[^8]
Despite this conclusion, however, Follansbee contends that the FAA never
gave the "green light" for Deschutes County, Oregon, to approve H & G's
plans because the FAA never accounted for Juniper's proximity to the
proposed tower site.[^9] Accordingly, Follansbee requests that the
Commission stay the grant of the construction permit until Deschutes
County determines the air safety of the proposed towers.[^10]

In the April 2008 Letter, Follansbee acknowledged that Deschutes County
granted H & G's land-use application on December 14, 2007. Nevertheless,
Follansbee claims that H & G misrepresented the Determination's finding
because it did not directly apply to Juniper, and reiterates her
challenge to any decision relying on the Determination as resolving air
hazard issues with regard to safety concerns posed to Juniper
airspace.[^11]

H & G responded to Follansbee's Informal Objections on May 2, 2008.[^12]
H & G first argues that Follansbee's concern regarding the Determination
is "irrelevant" because FAA regulations do not require "No Hazard"
determinations for towers less than 200 feet tall.[^13] Secondly, H & G
contends that Deschutes County already made a final decision in favor of
H & G, making Follansbee's objections moot.[^14] Therefore, according to
H & G, we should dismiss Follansbee's Informal Objections and grant the
Application.[^15]

**Discussion.** Pursuant to Section 309(e) of the Act, informal
objections must provide properly supported allegations of fact that, if
true, would establish a substantial and material question of fact that
grant of the application would be *prima facie* inconsistent with the
public interest.[^16] We will consider Follansbee's Informal Objections
based on this standard of review.

Section 17.4 of the Rules requires the owner of any tower "requir\[ing\]
notice of proposed construction to the \[FAA\]" to register with the
Commission. [^17] In cases where notice to the FAA is required, the
owner also must submit a valid FAA determination of "No Hazard."[^18]
Pursuant to Section 17.7(a) of the Rules, FAA notification is required
for towers that would be "more than 60.96 meters (200 feet) in height
above ground level at its site." [^19] FAA notification also is required
for any tower that would interrupt specific glide-path slopes extending
out from the nearest runway as listed in Section 17.7(b) of the
Rules.[^20] However, the FAA will make a "no hazard" determination only
by assessing a proposed tower's impact on runways "available for public
use" or "operated by an armed force of the United States."[^21]

The record establishes that notice of the proposed tower array was not
categorically required.[^22] Nevertheless, H & G voluntarily gave notice
of the proposed towers to the FAA.[^23] The FAA subsequently made its
Determination on September 5, 2007, finding that the proposed towers
posed no hazard to air safety. Thus, although notice to the FAA was not
required, we note that H & G has fully complied with the associated
Commission registration requirements. To the extent that Follansbee
disagrees with the Determination, this is a matter that falls solely
within the FAA's jurisdiction. Therefore, we conclude that the Informal
Objections fail to establish a *prima facie* case that grant of the
Application would be inconsistent with the public interest.

**Conclusion.** IT IS ORDERED, that Ms. Julia A. Follansbee's Informal
Objections ARE HEREBY DENIED. IT IS FURTHER ORDERED, that the Hill &
Glover Broadcasting, LLC's Modification Application IS GRANTED.

> Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

cc: Hill & Glover Broadcasting, LLC

[^1]: FCC File No. BMP-20070419ABG.

[^2]: *See* April 2008 Letter at 2. Unlike a "public airport," a
    private-use airport is an airport that is not "open to the general
    public." *See* 14 C.F.R. § 77.2.

[^3]: *Id*.

[^4]: FCC File No. BMP-20070419ABG.

[^5]: *See* *Letter to Joseph M. DiScipio*, Reference 1800B3 (MB Sept.
    5, 2007); *see also* 47 C.F.R. § 73.182.

[^6]: *See* Petition for Reconsideration and Request for Reinstatement
    of Application at 1. We will generally reinstate an application
    *nunc pro tunc* where the original application was dismissed and
    where a "minor curative amendment" was filed within thirty days of
    the dismissal date. *See Statement of Future Policy on Incomplete or
    Patently Defective AM and FM Construction Permit Applications*,
    Public Notice, 49 Fed. Reg. 47331, 47332 (Dec. 3, 1984).

[^7]: *Letter to Joseph M. DiScipio*, Reference 1800B3 (MB Apr. 7,
    2008). Follansbee filed the October 2007 Letter after we initially
    dismissed the Application. Follansbee apparently never served this
    objection on H & G. *Id*.

[^8]: *See Determination of No Hazard to Air Navigation*, Aeronautical
    Study No. 2007-ANM-2561-OE (Sept. 5, 2007).

[^9]: *See* October 2007 Letter at 1.

[^10]: *Id*.

[^11]: *See* April 2008 Letter at 2.

[^12]: *See* Response to Reinstatement Letter and Informal Objections.

[^13]: *Id*. at 2.

[^14]: Follansbee appealed Deschutes County's approval the H & G towers,
    but under the County's procedures ordinance, the decision is "final"
    regardless of any pending appeal. *See id*. at 3.

[^15]: *Id*. at 2.

[^16]: 47 U.S.C. § 309(e); *See also* *Area Christian Television, Inc.*,
    Memorandum Opinion and Order, 60 R.R. 2d 862 (1986) (informal
    objections, like petitions to deny, must contain adequate and
    specific factual allegations sufficient to warrant the relief
    requested).

[^17]: *See* 47 C.F.R. § 17.4(a).

[^18]: *Id*. § 17.4(b).

[^19]: *Id*. § 17.7(a).

[^20]: *See id*. § 17.7(b). Additionally, the FAA also requires notice
    for any construction that would be in an "instrument approach area,"
    which is inapplicable in this case. *See id*. § 17(c).

[^21]: ^?^ *Id*. § 17.7(d). Section 17.7(d) of the Rules also applies to
    airports proposed for construction. *Id*.

[^22]: Letter from Nancy B. Kalinowski, Acting Vice President, Systems
    Operations Services, Federal Aviation Administration, to Sen. Gordon
    H. Smith (Oct. 15, 2007), attached to the April 2008 Letter ("It is
    significant to note that in this particular case, \[H & G\] is not
    required to file notice with the FAA . . . . Notwithstanding the
    above notice requirements, a proponent is not precluded from seeking
    FAA review if he/she so desires. . . . \[H & G\] voluntarily filed
    notice with the FAA.").

[^23]: *Id*.