**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Amendment of Section 73.202(b), ) MM Docket No. 90-189

Table of Allotments, ) RM-6904

FM Broadcast Stations. ) RM-7114

(Farmington, Grass Valley, Jackson, ) RM-7186

Lindon, Placerville, and Fair Oaks, ) RM-7415

California, and Carson City and ) RM-7298

Sun Valley, Nevada) )

)

[MEMORANDUM OPINION AND ORDER]{.underline}

(Proceeding Terminated)

**Adopted:** October 27, 1999 **Released:** November 5, 1999

By the Chief, Allocations Branch:

1\. The Commission has before it the Petition for Reconsideration filed
by Gold Country Communications, Inc. (\"Gold Country\") directed to the
[Memorandum Opinion and Order]{.underline} in this proceeding, 11 FCC
Rcd 2356 (1996). Nevada County Broadcasters, Inc. (\"Nevada County\")
filed an Opposition to Petition for Reconsideration. Gold Country filed
a Reply to Opposition to Petition for Reconsideration.[^1] For the
reasons discussed below, we are reversing our earlier action in the
[First Report and Order]{.underline} in this proceeding. In doing so, we
will upgrade Station KNGT, Jackson, California, to specify operation on
Channel 232B1. In order to accommodate this upgrade, we will modify the
license of Station KNCO, Grass Valley, California, to specify operation
on Channel 231A.

Background

2\. The [Notice of Proposed Rule Making and Orders to Show
Cause]{.underline} in this proceeding set forth three separate Petitions
for Rule Making which were either mutually exclusive or interrelated. 5
FCC Rcd 2137 (1990). The first Petition for Rule Making was filed by
Denise Neubauer (\"Neubauer\") proposing the allotment of Channel 258A
to Placerville, California, as a second local FM service (RM-7186). The
second Petition for Rule Making was filed by Eric R. Hilding
(\"Hilding\") proposing the allotment of Channel 232A to Farmington,
California, as a first local service (RM-6904). In order to accommodate
this allotment, Hilding also proposed the substitution of Channel 259A
for Channel 232A at Jackson, California, and modification of the license
of Station KNGT, Channel 232A, Jackson, to specify operation on Channel
259A. This proposed Channel 259A substitution at Jackson conflicted with
the proposed Channel 258A allotment at Placerville. The third Petition
for Rule Making was filed by Gold Country, licensee of Station KNGT,
Channel 232A, Jackson, proposing the substitution of Channel 232B1 for
Channel 232A at Jackson, and the modification its Station KNGT license
to specify operation on Channel 232B1 (RM-7114). In order to accommodate
that upgrade proposal, Gold Country proposed the substitution of Channel
231A for Channel 232A at Grass Valley, California, and the modification
of the license of Station KNCO, Channel 232A, Grass Valley, to specify
operation on Channel 231A. The proposed Channel 232B1 upgrade at Jackson
conflicted with the proposed Channel 232A allotment at Farmington.

3\. In response to the [Notice of Proposed Rule Making and Orders to
Show Cause]{.underline} setting forth the three proposals in this
proceeding, Nevada County, licensee of Station KNCO, Channel 232A, Grass
Valley, filed a Response to Order to Show Cause and Petition for Rule
Making. In that pleading, Nevada County proposed the substitution of
Channel 232B1 for Channel 232A at Grass Valley and the modification of
its Station KNCO license to specify operation on Channel 232B1. The
proposed Channel 231B1 upgrade for Station KNCO conflicted with the
proposed Channel 232B1 upgrade for Station KNGT in Jackson, and also
required the substitution of Channel 259A for Channel 232A at Jackson,
and the modification of the Station KNGT license to specify operation on
Channel 259A. In addition, Nevada County proposed the allotment of
Channel 232A to Linden, California, as a first local service (RM-7415).
This proposal conflicted with proposed Channel 232A allotment at
Farmington, and also required the substitution of Channel 259A for
Channel 232A at Jackson.

4\. The [First Report and Order]{.underline} upgraded Station KNCO,
Channel 232A, Grass Valley, California, to specify operation on Channel
232B1, and allotted Channel 232A to Farmington, California. 10 FCC Rcd
9938 (1995).[^2] In order to accommodate this upgrade and new allotment,
the [First Report and Order]{.underline} also substituted Channel 259A
for Channel 232A at Jackson, and modified the Station KNGT license to
specify operation on Channel 259A.[^3]

5\. Gold Country filed a Petition for Reconsideration directed against
the [First Report and Order]{.underline}. However, Gold Country did not
provide a proof of service as required by Section 1.47(g) of the Rules
there was no indication whatsoever that the Petition for Reconsideration
had been served on the other parties in the proceeding as specifically
required by Section 1.106(f) of the Commission\'s Rules. For this
reason, the Petition for Reconsideration was dismissed as procedurally
defective.

6\. In the Petition for Reconsideration directed against that dismissal,
Gold Country contends that the basis for the dismissal was factually
incorrect. Specifically, Gold Country states that on October 13, 1995,
one day after it filed the Petition for Reconsideration, it served the
other parties in the proceeding. Through \"ministerial oversight,\" Gold
Country states that it did not file the Certificate of Service with the
Commission. As \"corroboration,\" Gold Country submitted a billing slip
dated by hand from its law firm indicating a postage charge for the
October 13, 1995, mailing of the Petition for Reconsideration.

7\. After careful consideration of this entire matter, we believe that
the public interest requires that we consider the Gold Country Petition
for Reconsideration and its Supplemental Petition. We remain unpersuaded
that Gold Country complied with the service requirement of Section
1.106(f) of the Rules. Even though Gold Country may not have timely
served the other parties with a copy of its Petition for
Reconsideration, it did serve the parties with a copy of its Supplement
to Petition for Reconsideration and its Reply to Opposition thereby
alerting parties of the filing of its Petition for Reconsideration. A
failure to comply with Sections 1.46(g) and 1.106(f) of the Rules has
not delayed resolution of this proceeding and we believe that an issue
of interference to Station KNCO should be considered on its merits.
Nevertheless, we would like to make some observations concerning the
service requirements set forth in Sections 1.47(g) and 1.106(f) of the
Rules and the filing of the Petition for Reconsideration by Gold
Country. First of all, the most probative evidence concerning whether or
not Gold Country actually served the other parties in the proceeding
would have been statements from these parties stating that they did, in
fact, receive a copy of the Petition for Reconsideration soon after
October 13, 1995. Gold Country did not provide such a statement from
[any]{.underline} party in the proceeding. Second, even though Section
1.47(g) of the Rules states that the proof of service does not affect
the validity of the service, the failure of Gold Country to submit its
Certificate of Service to the Commission through \"ministerial
oversight\" does not represent the degree of diligence that we expect
from parties in a rulemaking proceeding.[^4]

8\. In its initial Petition for Reconsideration, Gold Country argues
that the [First Report and Order]{.underline} accorded disparate
treatment to the petitioners in this proceeding. Specifically, Gold
Country states as follows:

\"This disparate treatment, application of the amended rules for maximum
transmitting power for FM stations to the losing petitioners and
applications of the earlier existing rules to those whose petitions were
granted is violative of the Administrative Procedure Act, and results in
a denial of due process to the losing petitioners.\"

Thereafter, Gold Country filed its Supplemental Pleading to Petition for
Reconsideration to \"correct an oversight\" regarding prohibited levels
of interference to its Station KNGT as well as Station KCIV, Mt.
Bullion, California. In regard to its Station KNGT, the operation on
Channel 259A will result in new interference from super-power Station
KFRC-FM, Channel 259B, San Francisco, California. Specifically, Gold
Country contends that a Station KNGT operation on Channel 259A would
experience prohibited interference from Station KFRC-FM in an area of
1,107 square kilometers containing 25,138 persons. In addition, Gold
Country contends that Station KNGT on Channel 259A would be short-spaced
to Station KCIV, Channel 260B, Mt. Bullion, California. We will consider
the argument concerning interference to Station KNGT from Station
KFRC-FM..

9\. At the outset, we concede that this allegation of interference is
untimely. Gold Country did not raise any interference arguments in
response to the original [Notice of Proposed Rule Making and Order to
Show Cause]{.underline} in this proceeding. In its Petition for
Reconsideration directed to the [First report and Order]{.underline},
Gold Country again did not raise any issue of interference. It was not
until November 10, 1995, after the statutorily mandated period for
filing a petition for reconsideration, did Gold country file a
\"Supplemental Pleading\" that raised, for the first time, an allegation
that a Channel 259A operation in Jackson would receive interference from
super-power Station KFRC-FM.[^5] We agree with Nevada County that these
failures do not represent ordinary diligence by Gold Country in this
proceeding. In this regard, Section 1.429(b) of the Rules provides that
petitions for reconsideration relying upon facts not previously
submitted will be granted only under three limited circumstances. First,
the facts relate to events which have occurred or circumstances which
have changed since the last opportunity to present these facts to the
Commission. Second, the facts were unknown to the petitioner and could
not have been timely ascertained through the exercise of ordinary
diligence. Third, the Commission determines that consideration of these
facts is required by the public interest. Notwithstanding the lack of
ordinary diligence by Gold Country in raising the issue of interference,
we believe that the public interest requires that we consider the
allegation of significant interference to the only broadcast station
licensed to Jackson, California.

10\. We have done our own engineering study concerning the level of
interference Station KFRC-FM would cause to a Channel 259A operation by
Station KNGT in Jackson. Currently Station KNGT provides a 60 dBu
service to 36,566 persons in an area of 1,726 square kilometers.[^6] In
accordance with Section 73.313 of the Rules, we make this determination
on the extent of the 60 dBu contour using the standard propagation
methodology, the F(50,50) curves, which predicts the distance from the
transmitter to a specific signal strength, such as 60 dBu, given the
power and height of the antenna. In calculating interference from
Station KFRC-FM, we first note that Jackson is 155 kilometers northeast
of San Francisco along the 63.7 N azimuth. Co-channel interference
results when the 40 dBu signal of Station KFRC-FM, using the F(50,10)
curves, overlaps the 60 dBu contour of Station KNGT. [See]{.underline}
Section 73.509 of the Rules. In this instance, the Station KFRC-FM 40
dBu contour will extend 160 kilometers while the 60 dBu contour of
Station KNGT extends 24.2 kilometers. This area of interference
encompasses 1,107 square kilometers containing 25,138 persons. In this
regard, we have also examined the Nevada County suggestion that
intervening mountains would attenuate or eliminate any such
interference. In doing so, we have examined the terrain profile along
several radials between Jackson and San Francisco to a distance of 150
kilometers using a 3-arc-second terrain data base. Despite the high
mountain range 30 to 40 kilometers east of San Francisco, our
examination of the terrain shows no reason for the interference fields
beyond 60 kilometers from the Station KFRC-FM transmitter site to be
less than that predicted by the F(50,10) curves. The reason for this
determination is the fact that beyond 60 kilometers, the dominant mode
of FM signal propagation results from atmosphere reflection, referred to
as troposcatter. As such, the interfering 40 dBu contour of Station
KFRC-FM extends the same distance as predicted by the F(50,10) curves
notwithstanding the mountain range between San Francisco and Jackson.
Nevada County has provided no engineering exhibit that would refute this
finding.

11\. As stated earlier, the modification of the Station KNGT license to
specify operation on Channel 259A will result in a loss of existing
Station KNGT service to approximately 25,138 persons in an area of 1.107
square kilometers. We cannot make a finding that impairing the only
broadcast station licensed to Jackson is in the public interest. For
this reason, we are setting aside this modification of the Station KNGT
license to specify operation on Channel 259A, and are returning Station
KNGT to Channel 232A. As a result of the action returning Station KNGT
to Channel 232A, it is also necessary to set aside two conflicting
actions in the [First Report and Order]{.underline}. Specifically, we
are setting aside the upgrade of Station KNCO, Channel 232A, Grass
Valley, California, to Channel 232B1, as well as the action allotting
Channel 232A to Farmington, California. In view of these actions, we are
now able to grant the remaining pending proposal in this proceeding
which had been precluded by the Channel 232B1 upgrade at Grass Valley.
Specifically, we are upgrading Station KNGT, Jackson, California, to
specify operation on Channel 232B1.[^7] This will provide additional
service to approximately 46,000 persons. In order to accommodate this
upgrade at Jackson, we will modify the license of Station KNCO, Grass
Valley, California, to specify operation on Channel 231A.[^8] In
accordance with [Circleville, Ohio]{.underline}, 8 FCC 2d 159 (1976),
Gold Country will be required to reimburse Nevada County for its
reasonable costs associated with changing its channel.

12\. Accordingly, pursuant to the authority contained in Sections 4(i),
5(c)(1), 303(g) and (r) and 307(b) of the Communications Act of 1934, as
amended, and Sections 0.61, 0.204(b) and 0.283 of the Commission\'s
Rules, IT IS ORDERED, That effective December 23, 1999, the FM Table of
Allotments, Section 73.202(b) of the Commission\'s Rules, IS AMENDED,
with respect to the communities listed below, to read as follows:

[Community]{.underline} [Channel No.]{.underline}

Grass Valley, California 231A, 257B1, 277A

Jackson, California 232B1

Farmington, California \-\-\-\-\--

13\. IT IS FURTHER ORDERED, pursuant to Section 316(a) of the
Communications Act of 1934, as amended, that the license of Gold Country
Communications, Inc., for Station KNCO, Channel 232A, Jackson,
California, IS MODIFIED, to specify operation on Channel 232B1, subject
to the following conditions:

\(a\) Within 90 days of the effective date of this [Order]{.underline},
the licensee shall file with the Commission a minor change application
for construction permit (FCC Form 301), specifying the new facility.

\(b\) Upon grant of the construction permit, program tests may be
conducted in accordance with Section 73.1620 of the Commission\'s Rules.

\(c\) Nothing contained herein shall be construed to authorize a change
in transmitter location or to avoid the necessity of filing an
environmental assessment pursuant to Section 1.1307 of the Commission\'s
Rules.

14\. IT IS FURTHER ORDERED, That pursuant to Section 316(a) of the
Communications Act of 1934, as amended, the license of Nevada County
Broadcasters, Inc., for Station KNCO, Channel 232A, Grass Valley,
California, IS MODIFIED to specify operation on Channel 231A, subject to
the following conditions:

\(a\) Nothing contained herein shall be construed to authorize any
change in the authorization for Station KNCO except for the channel as
described above. Any other changes, except for those specified under
Section 73.1690 of the Commission\'s Rules, require prior authorization
pursuant to an application for construction permit (FCC Form 301).

\(b\) Program tests may be conducted in accordance with the provisions
of Section 73.1620 of the Commission\'s Rules, PROVIDED the transmission
facilities comply in all respects with the authorization for Station
KNCO except for the channel as specified above and a license application
(FCC Form 302) is filed within 10 days of the commencement of program
tests.

15\. IT IS FURTHER ORDERED, That the aforementioned actions contained in
the [First Report and Order]{.underline} in this proceeding allotting
Channel 232A to Farmington, California, upgrading Station KNCO, Grass
Valley, California to Channel 232B1, and modifying the license of
Station KNGT, Jackson, California, to Channel 259A, ARE HEREBY SET
ASIDE.

16\. IT IS FURTHER ORDERED, That the Petition for Rule Making filed by
Eric R. Hiding for a Channel 232A allotment at Farmington, California
(RM-6904) IS DENIED.

17\. IT IS FURTHER ORDERED, That the counterproposal filed by Nevada
County Broadcasters, Inc. proposing a Channel 232B1 upgrade for Station
KNCO, Grass Valley, California (RM-7415), IS DENIED.

18\. IT IS FURTHER ORDERED, That the Secretary of the Commission shall
send a copy of this [Memorandum Opinion and Order]{.underline} BY
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, to Nevada County Broadcasters,
Inc., 1255 E. Main Street, Grass Valley, California, 95945.

19\. For further information concerning this proceeding, contact Robert
Hayne, Mass Media Bureau (202) 418-2177.

FEDERAL COMMUNICATIONS COMMISSION

John A. Karousos

Chief, Allocations Branch

Policy and Rules Division

Mass Media Bureau

[^1]: ^?^In addition, Gold Country filed a Petition for Leave to File
    Supplemental Petition and Supplemental Pleading. Nevada County filed
    an Opposition and Gold Country filed a Reply to that Opposition. As
    discussed below, the Supplemental Pleading raises a credible claim
    of significant interference to an existing service and we believe
    that the public interest requires that we consider the engineering
    merits of that allegation. Accordingly, we hereby grant the Gold
    Country Petition for Leave to File Supplemental Petition.

[^2]: ^?^In a [Second Report and Order]{.underline}, we separately
    granted a Petition for Rule Making filed by Sapphire Broadcasting,
    Inc., licensee of Station KIZS, Channel 234C, Carson City, Nevada,
    which substituted Channel 234B1 for Channel 234C, reallotted Channel
    234B1 to Fair Oaks, California, and modified the station KIZS
    license to specify operation on Channel 234B1. 11 FCC Rcd 8117 (1996
    ). That action is now final.

[^3]: ^?^In the [First Report and Order]{.underline}, we also denied the
    Nevada County proposal for a Channel 232A allotment at Linden,
    California. The proposed Channel 232A allotment at Linden did not
    comply with the minimum separation requirements in effect on the
    date it was filed. Specifically, it was filed after the October 29,
    1989, effective date of the new separation requirements set forth in
    Section 73.207(b) of the Commission\'s Rules. [See]{.underline}
    [Amendment of Part 73 of the Rules to Provide for an Additional
    Class (Class C3) and to Increase the Maximum Transmitting Power for
    Class A FM Stations]{.underline}, 4 FCC Rcd 6375 (1989). Nevada
    County did not seek reconsideration of that denial.

[^4]: ^?^In this regard, we note that earlier in this proceeding, Gold
    Country did not serve Nevada County, licensee of Station KNCO, Grass
    Valley, California, with a copy of its Petition for Rule Making as
    required by Section 1.401(d) of the Rules.

[^5]: ^?^Class B Station KFRC-FM operates with an effective radiated
    power (ERP) of 40 kilowatts at a height above average terrain (HAAT)
    of 396 meters. This is the equivalent of 321 kilowatts ERP at a HAAT
    of 150 meters. Section 73.211 of the Rules prescribes maximum
    facilities for a Class B FM station of 50 kilowatts ERP at a HAAT of
    150 meters. The minimum separation requirements for FM stations set
    forth in Section 73.207 of the Rules presumes an FM station will
    operate at or below maximum facilities.

[^6]: ^?^Station KNGT operates on Channel 232A as a three-kilowatt Class
    A FM facility. It does not meet the new separation requirements now
    set forth in Section 73.207(b) of the Rules which would permit a
    six-kilowatt operation .[See]{.underline} [Amendment of Part 73 of
    the Rules to Provide for an Additional Class (Class C3) and to
    Increase the Maximum Transmitting Power for Class A FM
    Stations]{.underline}, [supra]{.underline}. In view of the current
    three-kilowatt operation by Station KNGT, Channel 259A was
    substituted as a three-kilowatt allotment.

[^7]: ^?^The reference coordinates for Channel 232B1 at Jackson,
    California, are 38-24-44 and 120-35-32.

[^8]: ^?^The reference coordinates for the Channel 231A allotment at
    Grass Valley, California, are 39-14-44 and 120-57-52.