Before the

**FEDERAL COMMUNICATIONS COMMISSION FCC 96-113**

Washington, D.C. 20554

In the Matter of )

)

Comments in Response to Reconsideration )

of Implementation of the AM Expanded )

Band and Allotment Plan )

**[MEMORANDUM OPINION AND ORDER]{.underline}**

Adopted: March 15, 1996 Released: March 22, 1996

By the Commission: Commissioner Barrett concurring and issuing a
statement.

1\. In [Review of the Technical Assignment Criteria for the AM Broadcast
Service]{.underline}, 6 FCC Rcd 6273 (1991), \[\"*AM Improvement
Order*\"\], [recon. granted in part and denied in part]{.underline}, 8
FCC Rcd 3250 (1993) \[\"*Reconsideration Order*\"\], the Commission
adopted measures to facilitate an overall improvement and revitalization
of the AM broadcast band as a whole and to effectuate the necessary
development of the spectrum between 1605 and 1705 kHz. This spectrum is
referred to as the \"Expanded Band.\" On October 14, 1994, the Mass
Media Bureau released a Public Notice (*Public Notice*) which announced
an Allotment Plan which set forth the stations that were eligible to
apply for authorizations for specific expanded band frequency
allotments. Nineteen petitions and an application for review were filed
seeking reconsideration of the *Public Notice.* By *Memorandum Opinion
and Order*, 10 FCC Rcd 12143 (1995) \[*Order*\], the Commission
partially granted reconsideration and rescinded the *Public Notice*. The
Commission also rescinded a December 3, 1993 Public Notice which set
forth interference improvement factor rankings of existing AM licensees
who had petitioned to migrate to the expanded band. [^1] The *Order* set
forth the technical procedures that will be used to generate new
improvement ranking factors and a revised allotment plan. Interested
parties were afforded a thirty day period to comment on the procedures.
Four parties filed comments. We discuss these comments herein.

2\. [Station KKDZ]{.underline}. Kidstar Radio, Inc. is the licensee of
Station KKDZ, Seattle, Washington. KKDZ shares time on 1250 kHz with
Station KWSU, Pullman, Washington. Pursuant to their share-time
agreement, KKDZ operates on 1250 kHz with 5 kW non- directional
facilities during the day and operates from local sunset to midnight,
when KWSU is operating, with 5 kW directional facilities. It operates in
a directional mode during these nighttime hours to protect KWSU\'s
nondirectional operation. KWSU ceases to operate after midnight. KKDZ,
however, elects to operate from midnight until 6:30 A.M. and, during
those hours, reverts to its nondirectional operating mode. KKDZ contends
that because KWSU is considered an \"unlimited\" time station,
authorized to operate nondirectionally, KKDZ should share that
designation since it operates with a nondirectional antenna for part of
the night. It argues that the staff erred in basing the nighttime
component used in calculating KKDZ\'s improvement factor on KKDZ\'s
directional nighttime operation rather than on its nondirectional
nighttime facility.[^2] KKDZ thus concludes that its interference
improvement factor should be higher than that determined by the staff.

3\. We find that the staff properly calculated KKDZ\'s improvement
factor based on its status as a nighttime directional facility. From
sunset to midnight, KKDZ operates concurrently with KWSU, using a
directional antenna system. Under our rules, full-time stations are
required to operate for at least two-thirds of the time between 6:00 PM
and midnight.[^3] It is this part of the operation that determines
compliance with the minimum operating nighttime schedule. For the
purposes of determinining improvement to the existing band (the goal of
the expanded band proceeding) our focus is on this part of the schedule
because there is no requirement for stations to operate beyond midnight.
Although some stations, such as KKDZ, elect to do so, our experience is
that a significant number of AM stations cease operating at that hour or
operate for only a few hours between midnight and local sunrise. We do
not maintain records on stations that operate after midnight and thus
there is no way to accurately ascertain the interference reduction KKDZ
would achieve after midnight. On the other hand, since all full-time
stations operate during the 6:00 PM to midnight time frame, we can
determine the improvement achieved during these hours if KKDZ were to
migrate to the expanded band. Under these circumstances, it is
appropriate to use KKDZ\'s nighttime directional operation, the mode in
which it operates between local sunset and midnight, to evaluate the
effect of a potential migration of KKDZ to the expanded band. Therefore,
we reject KKDZ\'s argument that its improvement factor should be based
upon treating the station as a nondirectional nighttime facility.

4\. [Stations KHVN and WAOK]{.underline}. GCI Texas II, Inc. (\"GCI\")
is the licensee of Station KHVN, Fort Worth, Texas and GCI Atlanta II,
Inc. (also referred to herein as \"GCI\") is the licensee of Station
WAOK, Atlanta, Georgia. Both stations are commonly owned and both
stations were identified in the Allotment Plan as eligible to apply for
authorizations for specific expanded band frequency allotments. GCI
submits its comments as a \"protective measure\" because of the \"slight
possibility\" that its expanded band allotments could be jeopardized by
a revised allotment plan. GCI argues that it complied with all previous
procedures in the AM expanded band proceeding, that it was awarded
allotment opportunities, and that \"basic fairness\" requires that the
Commission allow its stations to retain their expanded band allotments
and permit them to migrate to the expanded band when such migration is
authorized.

5\. GCI\'s future status under a revised allotment plan is undetermined
and any claim that it may be adversely affected once a new allotment
plan is generated is speculative. Moreover, GCI\'s ranking and the award
of frequency allotments under the rescinded Allotment Plan did not vest
in GCI a right to the allotted frequencies. The Allotment Plan was
subject to review and, upon that review, the Commission determined that
the public interest in revitalizing the AM band required rescinding the
plan and generating a new one. GCI\'s private interests are subordinate
to the overall public interest of facilitating an improvement and
revitalization of the AM broadcast band as a whole and to effectuate the
necessary development of the spectrum between 1605 and 1705 kHz. *See AM
Improvement Order and Reconsideration Order, supra.* The regeneration of
an allotment plan is a necessary step toward achieving that goal.

6\. [Station WGNY]{.underline}. The last comments were filed by Sunrise
Broadcasting of New York, Inc. (WGNY), licensee of Station WGNY,
Newburgh, New York. WGNY contends (a) that the *Order* fails to
implement the Commission\'s prior determination that federal travellers
information stations operating on 1610 kHz would only be accorded
co-primary status with expanded band stations until the travellers
information stations can be moved to other frequencies; (b) that the
*Order* is in error in not permitting the use of actual measured data to
resolve potential allotment interference between proposed expanded band
stations and federal travellers information stations; and (c) that
standards proposed in the *Order* fail to protect stations on certain
frequencies from second harmonic interference and that using 0.5 mV/m
contours for station interference protection are too restrictive. WGNY
offers alternative standards.

7\. WGNY was excluded from an expanded band allotment for one of three
preclusion factors: (1) the United States-Canadian agreement, (2)
stations of higher ranking, or (3) interference with federal travellers
information stations. As we noted, federal travellers information
stations licensed by the National Telecommunications and Information
Administration (NTIA) have a co-primary status with the AM expanded band
stations. *See* Section 305(a) of the Communications Act of 1934, as
amended and 47 C.F.R Sections 2.105 and 2.106. This entitles federal
travellers information stations, authorized first-in-time, to receive
protection from interfering expanded band allotments. [^4]

8\. In the *Order,* the Commission specifically rejected WGNY\'s
suggestion that it should be allotted an expanded band frequency at this
time even though its proposal is in conflict with the federal travellers
information service. WGNY again proposes that AM stations in conflict
with federal travellers information stations should nonetheless be
allotted expanded band frequencies and, once such an allotment plan is
produced, federal travellers information stations should be required to
migrate to other frequencies within two years. WGNY suggests that
limiting the co-primary status of federal travellers information
stations to a date certain would insure that these stations have only a
temporary co-primary status. WGNY\'s proposal is basically a rehashing
of the argument it has already made and we again reject it. Federal
travellers information stations will continue on 1610 kHz on a
co-primary basis \"until they can be reaccommodated in an orderly
fashion on an alternate frequency.\" *See Reconsideration Order*, 8 FCC
Rcd at 3257. Once a determination is made as to the appropriateness and
timing of this reaccommodation, AM stations that were precluded from
receiving an allotment because of conflicts with federal travellers
information stations will be afforded an opportunity to migrate to the
expanded band.

9\. In the *Order,* the Commission also specifically rejected WGNY\'s
suggestion to permit the use of actual measurements to demonstrate lack
of interference between the AM expanded band allotment and a federal
travellers information station. The Commission intends to use M3
standard data to calculate interference. *See Order* at para. 27 (B) (3)
(b). As an alternative, WGNY now proposes to permit licensees to submit
measured data in computer-usable form so that it can be included in the
Commission\'s computer run for the revised allotment plan. We again
reject WGNY\'s proposal. From our experience, actual measurements are
subject to interpretation and often involve lengthy debate. Thus, use of
actual measurements would unavoidably postpone finality in this
proceeding until all the issues with all actual measurement submissions
could be resolved. Further, to permit actual measurement data as an
alternative to theoretical conductivity values would subject some
allotments to measured data and others to calculated data and thus
possibly prejudice some licensees. Lastly, WGNY had ample opportunity to
raise its proposal at the rulemaking stage of this proceeding.[^5] In
light of these factors, we have determined that the use of the M3
standard data for all licensees would facilitate the timely
implementation of the expanded band and best fosters the overall goals
of this proceeding. WGNY has not submitted any information or arguments
that would warrant a different result.

10\. Finally, WGNY argues that the 0.5 mV/m contour is too restrictive
for purposes of calculating the service area of harmonically related
stations. Section 73.112(s) of the Commission\'s rules prohibits a
station assignment if its frequency is twice that of another station in
the same service area. Section 73.182(d) of the Commission\'s rules
defines this service area as the 0.5 mV/m contour. WGNY did not raise
the question in the expanded band rulemaking proceeding whether this
general service area definition is also appropriate in making expanded
band assignments and its attempt to do so here is clearly untimely. In
any event, it has failed to demonstrate why the 0.5 mV/m service area
should not also apply to the expanded band.

11\. [Ordering Clauses]{.underline}. Accordingly, IT IS ORDERED that the
requests raised in the comments filed in this proceeding ARE DENIED, as
set forth above. IT IS FURTHER ORDERED that the June 30, 1993-A database
is now closed to further changes and the June 30, 1993-A AM Engineering
Database which was placed in the public record and associated with MM
Docket 87-267, the Expanded Band rulemaking proceeding, will be used as
the official database for further use in the expanded band
proceeding.[^6]

FEDERAL COMMUNICATIONS COMMISSION

William F. Caton

Acting Secretary

[^1]: ^?^ Stations were allotted channels based on their calculated
    improvement factor. *See* 47 C.F.R. 73.30. The improvement factor is
    the area of interference caused all other stations divided by the
    station\'s interference-free service area. The larger the
    improvement factor, the greater the reduction in interference in the
    existing band if the station causing the interference migrates to
    the expanded band.

[^2]: ^?^ Improvement factors relate to both nighttime and daytime
    interference conditions and the ratio used to calculate a station\'s
    improvement factor consists of two separate additive components, one
    for nighttime and one for daytime. *See* 47 C.F.R. 73.35.

[^3]: ^?^ The Commission requires all licensees to maintain a minimum
    operating schedule. *See* 47 C.F.R. Section 73.1740.

[^4]: ^?^ WGNY argues that the Commission accorded federal travellers
    information stations co-primary status on a permanent basis
    \"without the slightest indication that this co-primary status is
    only temporary.\" WGNY clearly misreads our intention. In footnote 3
    of the *Order*, the Commission specifically limited the protection
    of these stations to an undetermined but limited time. We stated:

    > We are sensitive to concerns that public reliance on \[travellers
    > information stations\] requires that such service not be subject
    > to undue disruption. Therefore, in a future proceeding, we will
    > reexamine the status of travelers information stations and explore
    > the feasibility of a primary allocation for \[travellers
    > information stations\] at 1710 kHz. Federal government
    > \[travellers information station\] operations will continue on
    > 1610 on a co-primary basis until they can be reaccommodated in an
    > orderly fashion on an alternative frequency.

[^5]: ^?^ We stated:

    In calculating the daytime contours, theoretical conductivity values
    will be used for the purpose of determining the daytime improvement
    factor. Although it would be possible to use measured conductivity
    data in connection with the contour calculations for the improvement
    factor, we conclude that the benefits of this approach would be very
    minimal. In order to use such data fairly, a complete search of all
    available data for all stations would be necessary. Even with all
    measured conductivity values considered, we believe that, with few
    exceptions, the effect of the measurement data would even out and
    there would be little overall impact on the ultimate ranking of the
    prospective migrators. *See AM Improvement Order*, 6 FCC Rcd at
    para. 123.

[^6]: ^?^ This docket file is available for public inspection in the
    Public Reference Room (Room 239, 1919 M St., N.W. Washington D.C.)
    and copies of this material may be obtained from the Commission\'s
    duplicating contractor, International Transcription Services, Inc.,
    (202) 857-3800. The database is also available in computer readable
    form by special order from the U.S. Department of Commerce, National
    Technical Information Service (NTIS), 5288 Port Royal Road,
    Springfield, Virginia 22161.