**FEDERAL COMMUNICATIONS COMMISSION**

**445 12^th^ STREET, S.W.**

**WASHINGTON, DC 20554**

**November 9, 2004**

***In Reply Refer to:***

1800B3-MFW

**DA 04-3554**

Marissa G. Repp, Esq.

Hogan & Hartson

555 13^th^ Street, N.W.

Washington, DC 20004-1109

In re: KFMD(FM), Denver, Colorado

Facility ID No. 48967

File No. BPH-20030424AAN

Citcasters Licenses, L.P.

KRFX(FM), Denver, Colorado

Facility ID No. 29731

File No. BPH-20030424AAO

Jacor Broadcasting of Colorado, Inc.

KBPI(FM), Denver, Colorado

Facility ID No. 29739

File No. BPH-20030424AAP

File No. BXPH-20040511ABL

Jacor Broadcasting of Colorado, Inc.

Dear Ms. Repp:

The staff has before it (1) the captioned applications of Citicasters
Licenses, L.P. ("Citicasters") and Jacor Broadcasting of Colorado, Inc.
("Jacor") for minor change of the licensed facilities of stations
KFMD(FM), KRFX(FM), and KBPI(FM), all licensed to Denver, Colorado;[^1]
and (2) the captioned application of Jacor for an auxiliary facility for
station KBPI(FM). We have received informal objections to the grant of
the minor modification applications filed by Canyon Area Residents for
the Environment ("CARE") on May 8, 2003; Meadowlark Group, Inc.
("Meadowlark") on May 20, 2003;[^2] Mr. Alfred Hislop on June 9, 2003;
Akron Broadcasting Company ("Akron"), also on June 9, 2003 (against the
KRFX(FM) and KFMD(FM) applications) and on May 21, 2004 (against the
KBPI(FM) application);[^3] Western Slope Communications, LLC ("Western")
on July 9, 2003; AGM-Rocky Mountain Broadcasting I, LLC ("AGM") and NRC
Broadcasting ("NRC") on August 15, 2003; and Mr. Dana J. Puopolo
("Puopolo") on March 2, 2004; we have also received related responsive
pleadings.[^4] Additionally, on April 25, 2003, Citicasters and Jacor
filed "Requests for Expedited Action" on the KFMD(FM) and KRFX(FM)
applications.[^5] For the reasons set forth below, we will dismiss the
subject minor modification applications and grant the KBPI(FM) auxiliary
application.

*Technical proposals*. The KRFX and KFMD applications specify a diplexed
antenna at the licensed KFMD site on Lookout Mountain in Jefferson
County, Colorado; KRFX proposes to move to the KFMD site from its
current location, and the stations propose use of a diplexed antenna
with a center of radiation 49 meters above ground level.[^6] However,
Citicasters has dismantled the existing KFMD tower (which, it claims,
had "structural concerns")[^7] and replaced it with a new tower having
the same location and overall height as the old tower. Station KBPI(FM)
currently operates from a tower at Lookout Mountain owned by KWGN, Inc.,
licensee of KWGN-TV in Denver. The instant KBPI application specifies
operation from a diplexed antenna -- to be shared with station KALC(FM),
Denver -- at KALC(FM)'s current position on the KWGN-TV tower, slightly
lower than KBPI(FM)'s current position on the tower.[^8] The tower will
be "reinforced" to accommodate this diplexed antenna as well as
KWGN-TV's digital antenna.[^9] The applications, "noting the
long-recognized method of calculating \[HAAT\] for similarly-situated
stations, request waivers of Section 73.313(d) of the Commission's Rules
to exclude from the antenna HAAT calculation the four radials extending
over the Rocky Mountains."[^10]

**Background**

*CARE objection*. CARE objects to the subject applications on three
grounds: (1) asserted non-compliance with the requirements of the
National Environmental Policy Act of 1969 ("NEPA");[^11] (2) an alleged
inadequate analysis of what it terms non-ionizing electromagnetic
radiation ("NIER"), known in the Commission's rules as radiofrequency
radiation ("RFR"); and (3) asserted non-compliance with the requirements
of the National Historic Preservation Act of 1966 ("NHPA").[^12] CARE
alludes to and purports to incorporate by reference a complaint it filed
with the Commission's Enforcement Bureau regarding the two towers
specified in the applications, *i.e.,* the KFMD(FM) and KWGN-TV
towers.[^13] Because we are dismissing the three modification
applications, we need not address CARE's substantive allegations, and we
will dismiss its objection as moot.[^14]

*Denver waiver*. As noted above, each of the subject applications
requests waiver of Section 73.313(d) of the Commission's rules to
exclude from the antenna HAAT calculation the four radials extending
over the Rocky Mountains. Jacor and Citicasters cite previous staff
actions granting allegedly similar waiver requests to Denver stations,
including KFMD(FM) (then KPKE(FM)). Meadowlark, Hislop, Western Slope,
Aspen, AGM, NRC, and Puopolo each has objected to the various waiver
requests.

[Meadowlark Objection]{.underline}. Meadowlark objects only to the
KRFX(FM) proposal. Meadowlark filed a counterproposal in the allotment
proceeding for MM Docket No. 03-57[^15] to allot Channel 248C to Creede,
Colorado as that community's first local broadcast service. This
counterproposal would be possible only if, *inter alia*, KRFX(FM) was
downgraded to Class C0 status. However, KRFX(FM) filed the subject
application in response to the Meadowlark counterproposal, an action
that ultimately resulted in the dismissal of Meadowlark's
counterproposal.[^16] Meadowlark argues that KRFX(FM) claims an antenna
HAAT of 487 meters, but would achieve a true HAAT of only 237.75 meters
using all eight radials as required by Section 73.313 of the rules.
KRFX(FM), states Meadowlark, has had 30 years to upgrade to full Class C
facilities; furthermore Meadowlark argues that KRFX(FM) cannot possibly
achieve true Class C status at its present site, as zoning restrictions
on Lookout Mountain prevent the erection of the tall towers needed for a
true Class C facility. Finally, Meadowlark indicates that not all of the
Denver area stations have "Denver Waivers," as, for example, Stations
KUVO(FM) and KVOD(FM) on Lookout Mountain actually have a greater HAAT
(computed based on the standard 8-radial method of calculation) than
KRFX(FM), as does KJCD(FM), Longmont, Colorado; each of these stations
is classified and protected as a Class C1 facility. Continuing to
protect KRFX(FM) as a Class C facility, concludes, Meadowlark, makes no
sense and "serves to frustrate meritorious proposals such as the one
advanced by \[Meadowlark\] in Docket No 03-57 -- a proposal which will
not only provide a first local service to a deserving community but will
provide a first broadcast service to a substantial populated area which
currently lacks any reception service."[^17]

In its June 3, 2003 Supplement to its Informal Objection, Meadowlark
lists 22 stations in Colorado, Wyoming, and Idaho subject to possible
downgrading. All but two, it observes, could achieve Full Class C Status
by excluding one or more radials. Meadowlark states that the "Denver
Waiver" therefore amounts to a *de facto* reclassification program and
promotes warehousing of spectrum. Finally, in its July 15, 2003, Further
Supplement, Meadowlark argues that in fact KRFX(FM)'s proposal actually
amounts to a downgrade of the station's facilities, because KRFX(FM)'s
current HAAT, using the standard eight-radial methodology, is 319
meters, while the proposed HAAT using the standard methodology is only
238 meters.[^18]

[Hislop Objection]{.underline}. Mr. Hislop objects to each of the
subject applications essentially on spectrum efficiency grounds. He
argues that the requested waivers will occupy spectrum and preclude
additional, smaller, "drop-in" services in the most rugged part of the
country where additional service is badly needed. The required
protection of stations benefiting from Denver Waivers to the west and
south will likely create a "dead zone" where the required spacings
protect an area that in reality, due to terrain features, will be devoid
of any signal at all. Such result is not in the public interest, he
argues.

[Akron Objections]{.underline}. On June 9, 2003, Akron filed an informal
objection against the KRFX(FM) and KFMD(FM) applications. Akron states
that, on May 24, 2002, it filed a petition for rule making asking the
Commission to allot Channel 279C1 to Akron, Colorado as that station's
first local service; the proposal would theoretically enable 40,000
people to receive radio service. The proposal is contingent on the
downgrade of KRFX(FM) to Class C0 status. In response to that petition,
the staff issued the *KRFX Show Cause Order* on March 3, 2004. Favorable
action on KRFX(FM)'s application and waiver request would, obviously,
preclude grant of Akron's petition for rule making. Akron states that
Jacor has failed to provide any detailed justification for waiver of
Section 73.313(d). It also argues that any past justification for
granting Denver Waivers has eroded with the passage of time and in any
event do not apply to KRFX(FM), because: (1) the situation in Denver is
not as anomalous as the Commission thought it was, as there are many
stations that might be subject to downgrading unless one or more radials
are omitted;[^19] (2) the "relative flatness" to the east of Denver that
allegedly demonstrates the uniqueness of the Denver Waiver stations is
misconceived, as the terrain variations east of Denver are themselves
significant enough to meet the requirement for "excessive" terrain
roughness established by the Audio Division in evaluating the propriety
of alternative contour-prediction methodologies;[^20] (3) the public
would receive significantly superior service if KRFX(FM) were required
to construct full Class C facilities;[^21] (4) The effect of granting a
waiver would be to deny service to underserved areas, because KRFX(FM)'s
signal approximates the expected coverage of a Class C0 station in most
directions, and waiver will provide it with "artificial protection,"
that would preclude such proposals as Akron's.

[Western Slope Objection]{.underline}. Western Slope states that on July
2, 2003, it filed a "one-step" application to upgrade its station,
KRVG(FM), Glenwood Springs, Colorado, from Class C3 to Class C2.[^22]
Western Slope observes that grant of the KFMD(FM) Denver Waiver request
is inappropriate because Section 73.313(d) permits the exclusion of
radials extending over foreign territories and over water but does not
exclude radials over mountainous terrain. Additionally, Western Slope
argues that grant of the KFMD(FM) waiver would create two barriers to
KRVG-FM's upgrade: First, it would prevent KRVG(FM) from further
upgrading to Class C1 status;[^23] second, KKNN-FM and KSTR-FM could use
the KFMD(FM) waiver here to propose an upgrade to full Class C status
with no change in facilities, avoiding reclassification and frustrating
Western Slope's plan to upgrade KRVG(FM).

[AGM/NRC Objection]{.underline}. AGM and NRC oppose only the KFMD(FM)
application. AGM and NRC are the licensee and assignee, respectively, of
station KIDN-FM, Hayden, Colorado.[^24] They also point out that the
Commission's rules do not permit the omission from the HAAT calculation
of radials over mountainous areas, and note that Commission rules can be
waived only if "good cause" is shown and that waiver proponents face a
"high hurdle" in demonstrating that the waiver would not undermine the
policy objectives of the rule.[^25] They state that Citicasters' sole
justification for the waiver here is that the Commission has granted
such waivers, including one to KFMD(FM), in the past. They contend,
however, that these prior waivers have disserved the public by thwarting
opportunities for additional service. AGM and NRC assert that, should
the Commission properly reclassify KFMD(FM) as a Class C1 facility,
KIDN-FM can and will apply to upgrade from Class C3 to Class C1
facilities, taking advantage of "a significant terrain feature" and
provide service to 2.5 times its current population.[^26] Continuation
of the waiver, on the other hand, will require maintenance of artificial
protection to KFMD(FM) and prevent nearby stations from upgrading and
bringing new service to surrounding rural areas.

[Puopolo Objection]{.underline}. Mr. Puopolo objects only to the
KRFX(FM) proposal. He summarizes previous objections of Meadowlark and
Hislop, and argues that the Commission has "an implicit duty to preserve
spectrum that might give rise to FM allotments for future
auctions."[^27] He then argues that, if KRFX(FM)'s waiver request is
denied and the station is "treated appropriately" under Section
73.313(d), he will petition the Commission to allot Channel 278C1 to
Craig, Colorado, as that community's fourth FM service. He states that
he will apply for, bid for, and, if successful, promptly build and
construct that facility, which would provide additional service to
18,589 persons in Colorado and Wyoming. By comparison, he states, grant
of the KRFX(FM) waiver will result in no additional service.

[Jacor/Citicasters Response]{.underline}. Jacor and Citicasters filed a
consolidated response to the Meadowlark, Hislop, Akron, Western Slope,
and AGM-NRC objections on December 9, 2003. In this filing, Jacor and
Citicasters argue that, because the staff granted similar waiver
requests for Denver Waivers, it must do so here.[^28] These include a
waiver for KFMD(FM), one of the stations involved here, and for
KALC(FM), Denver, which received a Denver Waiver while specifying
facilities identical to those specified by KBPI(FM) here. They argue
that the prior staff Denver Waivers were cited with approval by the
Commission in the Technical Streamlining rule making proceeding,[^29]
and the basic facts underlying those waivers -- the Rocky Mountains to
the west, the "relatively flat terrain toward the population centers to
the east" -- has not changed since the original Denver Waivers were
granted in 1986. Objectors' claims that "the floodgates would be opened"
by grant of the requested waivers is belied by the fact that, in the 18
years since the original three Denver Waivers were granted, only three
other stations have been granted similar waivers. Jacor and Citicasters
contend that in any event the staff can determine on a case-by-case
basis whether other waivers are warranted. If other stations do
demonstrate similar circumstances, they should be accorded similar
treatment. Finally, Jacor and Citicasters state that they need not show
a lack of alternative sites or any additional public interest factors to
justify a waiver. A Denver Waiver, they state, simply rectifies the
anomaly that would occur from the inclusion in HAAT calculations of
radials which would unreasonably skew the result; it is the "unwavering
inclusion," not the omission, of aberrant radials in the antenna HAAT
calculation that would be wrong and contrary to the public interest.

**Discussion**

On July 17, 1985, Westinghouse Broadcasting and Cable ("Westinghouse")
filed a Petition for Waiver of Section 73.211 of the rules to permit the
continued classification of stations KOSI(FM) and KPKE(FM) (now
KFMD(FM), one of the stations involved here), Denver, Colorado as Class
C stations notwithstanding antenna HAATs below the general minimum for
Class C stations specified in Section 73.211 of the Rules. Westinghouse
proposed to locate its station in the foothills of the Rocky Mountains,
with the Denver metropolitan area to the east and the mountains rising
sharply to the west. It argued that, due to the "highly unusual" terrain
in the Denver area, the usual HAAT measurement technique was
inappropriate. It further stated that "the actual coverage of KOSI and
KPKE to the east in the direction of Denver approximates that of a
maximum Class C facility," computed using only those radials in the
direction of Denver to the east. These terrain conditions, Westinghouse
argued, are "unique to the Denver area and not duplicated elsewhere
except for a few smaller communities to the North of Denver also
situated along the edge of the Rocky Mountain Range." Finally,
Westinghouse argued that protection required for the National Bureau of
Standards' nearby Table Mountain Receiving Zone placed "unique practical
constraints" on the ability of KOSI and KPKE to increase antenna height.

On January 14, 1986, the staff denied the request to waive Section
73.211.[^30] However, it agreed with Westinghouse's claim that, but for
the anomalous terrain to the west, both stations would have HAATs well
above the Class C minimum. The staff also stated that it would not be in
the public interest to have the licensees shift their transmitter sites
to the east such that the HAAT would exceed the Class C minimum but the
service provided by the station would be degraded. However, the staff
observed that the computation of HAAT pursuant to Section 73.313(d)
required the exclusion of radials where the 3-to-16-kilometer portion of
the radial extended over large bodies of water or foreign territories.
The staff stated that the rationale for such exclusion was "to prevent
what can be deemed to be nontypical or unimportant radials or portions
thereof from inappropriately skewing the calculated value of HAAT."
[^31] Accordingly, the staff on its own motion waived Section 73.313(d)
such that the terrain radials extending primarily over the Rocky
Mountains were not to be included in the calculation of the stations'
HAAT.[^32]

The staff subsequently granted "Denver Waivers" to several other
stations in the area, KPBI(FM) in Denver[^33] and KRXY-FM in Lakewood,
Colorado.[^34] In 2000, the Commission adopted a new Class of FM
station, Class C0, for stations with HAATs of less than 451 meters.
Class C stations that did not meet the new HAAT minimum were not
automatically downgraded. The Commission, however, adopted procedures to
downgrade stations which chose not to pursue the new minimum antenna
HAAT when a "triggering" application or rule making petition was
filed.[^35] The Commission examined the Denver Waiver issue in that
proceeding. While it declined to adopt a blanket exception to permit the
use of fewer than eight radials to meet Class C HAAT requirements, it
acknowledged the Denver Waiver policy, stating that "\[t\]he staff will
give careful consideration to any requests for waiver of Section
73.313(d) submitted by Class C stations subject to reclassification that
are located in mountainous areas, on a case-by-case basis."[^36]
Subsequently, as noted by Jacor and Citicasters, the staff has granted
unopposed Denver Waivers to Denver stations KOSI(FM) and KQMT(FM) for
diplexed facilities on Lookout Mountain, using four radials in the HAAT
calculation,[^37] and to Denver station KALC(FM), which also used four
radials in computing its HAAT.[^38]

We find that the proposed waivers of Section 73.313(d) of the
Commission's rules are unwarranted. Two related considerations compel
this result. First, the demand for FM spectrum has increased
dramatically in the United States since 1986. This is particularly true
in the Denver area, which has witnessed significant population growth in
many sparsely populated areas during this period. As the record in this
proceeding demonstrates, new service to more recently populated sections
west of Denver would be precluded by the additional protection afforded
by the Class C designation. Moreover, the Commission has specifically
concluded that Class C stations operating with antenna heights
substantially below class maximums should no longer enjoy the excessive
protection afforded by the rules in the face of competing expressions of
interest for new and/or expanded service. Granting the requested waivers
in this case would undermine this policy goal.

This case, in fact, highlights the manner in which lesser Class C
technical facilities can frustrate the expansion of radio service to the
listening public. In 2000 the Commission addressed this problem. The
*Second Report and Order* in the technical streamlining proceeding
created the Class C0 designation and involuntary downgrade procedures to
enhance the efficiency of the FM technical rules. Each of these changes
is relevant here. The new C0 classification ensures that downgrades will
be effected whenever modifications are sought that do not meet the new,
more stringent Class C antenna height requirements. The involuntary
downgrade procedures, triggered by the conflicting rulemaking or
application filings, establishes the Commission's clear preference for
new outlets over the continuation of protection levels far in excess of
actual licensed station parameters. In reaching this balance between
protection rights and the potential for additional service, the
Commission quoted with approval its prior consideration of this same
issue in Docket 80-90.

As discussed above, the *Second Streamlining Order* indicated that we
would consider any requests for waiver of Section 73.313(d) submitted by
Class C stations subject to reclassification that are located in
mountainous areas, on a case-by-case basis. In this case, in light of
the *bona fide* expressions of interest in new and expanded facilities,
as well as opposition by interested and directly affected parties, we
believe that continuation of the Denver waivers for KFMD(FM), KRFX(FM),
and KPBI(FM) is not warranted. To grant such waivers would plainly
frustrate the policy goals which led to the adoption of the new Class C0
designation.

The fact that the HAATs vary dramatically along different radials of the
captioned applications does not warrant a different result. We believe
that the prior staff characterization of the radials to the west of
Denver as either "nontypical" or "unimportant" are no longer tenable. As
Meadowlark and Akron, demonstrate, many stations could seek class
upgrades to gain additional protection by excluding one or several
radials. Similar HAAT differentials are not uncommon in other
mountainous areas, in coastal areas which feature rugged terrain, or
where valleys are situated near mountainous areas. We have not accepted
the *ad hoc* approach urged by Citicasters and Jacor in these similar
situations where service areas may exceed class maximums in certain
directions. The impossibility of making meaningful distinctions among
these factual situations argues for strict adherence to HAAT averaging
methodology, which provides a fair and workable means to establish
protection rights. The inclusion of radials that lie over the Rocky
Mountains is certainly important -- not unimportant -- to those
communities to the west which are denied new and/or improved service as
a result of the technically unsupportable protection rights afforded by
full Class C designations. We conclude that the consistent application
of our FM class rules provides the best way of fairly protecting
stations that operate effectively as Class A stations in certain
directions and Class C stations in others. We will therefore deny the
waiver requests and dismiss the subject modification applications.

*KBPI(FM) Auxiliary Facilities Application*. In its May 11, 2004,
application, Jacor requests authority for auxiliary (main back-up)
facilities for KPBI(FM) on the new KFMD(FM) tower. The KBPI(FM)
auxiliary operation would share the diplexed antenna proposed as the
KRFX(FM) and KFMD(FM) main facilities. Jacor requested waiver of Section
73.313(d) to exclude the radials from the HAAT calculation of the
auxiliary facility, and it also (on May 18, 2004) requested expedited
processing of that application. [^39] Akron and Meadowlark filed
informal objections to the auxiliary facility application on May 21,
2004 and May 24, 2004, respectively, on grounds similar to those on
which they challenged the modification applications -- that continuation
of a "Denver waiver" was not justified. [^40]

When evaluating an auxiliary antenna proposal for an FM station, our
primary concern is that the service contour of the auxiliary proposal
not extend beyond the 1 mV/m (60 dBμ) contour of the main facility.[^41]
The "class" of the auxiliary facility is not a relevant consideration so
long as that requirement is met. The proposed auxiliary facility
complies with this requirement.[^42] We will therefore dismiss Jacor's
request for waiver. Additionally, because the objections were premised
on Jacor's request for waiver, we will dismiss the objections as moot.
Finally, because the KBPI(FM) auxiliary facility application complies
with Section 73.1670(a) and all other pertinent technical requirements
-- including RFR exposure guidelines -- we will grant that application.

**Conclusions/Actions**

For the reasons set forth above, the captioned applications of
Citicasters Licenses, L.P. and Jacor Broadcasting of Colorado, Inc. for
minor change of the licensed facilities of stations KFMD(FM) (File No.
BPH-20030424AAN), KRFX(FM) (File No. BPH-20030424AAO), and KBPI(FM)
(File No. BPH-20030424AAP), all licensed to Denver, Colorado ARE
DISMISSED. Additionally, the Informal Objections filed by Canyon Area
Residents for the Environment, Meadowlark Group, Inc., Mr. Alfred
Hislop, Akron Broadcasting Company, Western Slope Communications, LLC,
AGM-Rocky Mountain Broadcasting I, LLC and NRC Broadcasting, and Mr.
Dana J. Puopolo, as well as the April 25, 2003, Requests for Expedited
Action filed by Jacor and Citicasters, ARE DISMISSED AS MOOT. Finally,
the Informal Objections to the KBPI(FM) auxiliary facilities application
(File No. BXPH-20040511ABL) filed on May 21, 2004, and May 24, 2004, by
Akron Broadcasting Company and Meadowlark Group, Inc., respectively, ARE
DISMISSED AS MOOT, the KBPI(FM) auxiliary facilities application IS
GRANTED, and the May 18, 2004, Request for Expedited Action by Jacor
Broadcasting of Colorado, Inc, IS DISMISSED AS MOOT.

Sincerely,

Peter H. Doyle, Chief

Audio Division

Media Bureau

cc: Canyon Area Residents for the Environment (*via* counsel)

Meadowlark Group, Inc. (*via* counsel)

Mr. Alfred Hislop

Western Slope Communications, LLC (*via* counsel)

John M. Pelkey, Esq.

Akron Broadcasting Company (*via* counsel)

AGM-Rocky Mountain Broadcasting I, LLC (*via* counsel)

NRC Broadcasting (*via* counsel)

Jacor Broadcasting of Colorado, Inc.

Citicasters Licenses, L.P.

Mr. Dana J. Puopolo

KWGN, Inc. (*via* counsel)

[^1]: The staff originally granted the KRFX(FM) and KFMD applications on
    May 19, 2003, and the KBPI(FM) application on May 20, 2003. However
    upon discovering that Canyon Area Residents for the Environment and
    Meadowlark Group, Inc. had filed informal objections to the
    applications on May 8, 2003, and May 20, 2003, respectively, the
    staff rescinded the grant of the applications on May 29, 2003. *See
    Public Notice*, Report No. 25498 (June 3, 2003.)

[^2]: Meadowlark filed a Supplement to its Informal Objection on June 3,
    2003, and a Further Supplement on July 15, 2003.

[^3]: On July 15, 2003, counsel for Akron filed a "Statement in Support"
    from certain residents of Akron, Colorado.

[^4]: Citicasters and Jacor filed a "Response" to CARE's objection on
    June 27, 2003. They also filed a single "Response" to the
    Meadowlark, Hislop, Akron, Western, and AGM-NRC on December 9, 2003.
    Western filed a "Reply" on December 17, 2003; and Meadowlark and
    Akron each filed a "Reply" on December 19, 2003.

[^5]: The request states that KRFX(FM)'s lease was due to expire on June
    10, 2004, and its landlord has given the station notice that it
    should vacate at that time so it can construct its own digital
    television facilities. Citicasters and Jacor reiterated that request
    on March 17, 2004, and it was opposed by Meadowlark on March 23,
    2004. The landlord is currently permitting KRFX(FM) to remain at the
    site on a month-to-month basis until the tower is dismnantled.

[^6]: KRFX(FM) is currently licensed to operate with an effective
    radiated power ("ERP") of 100 kW and an antenna height above average
    terrain ("HAAT") of 320 meters. Its modification application
    specifies an ERP of 100 kW and an HAAT of 487 meters at the KFMD
    site. KFMD is licensed for an ERP of 100 kW (horizontal), 64 kW
    (vertical) with an HAAT of 490 meters. It proposed operation with
    100 kW (horizontal and vertical) at an HAAT of 487 meters on its new
    replacement tower. The KRFX(FM) application indicates that it was
    filed in response to an *Order to Show* contemplating that KRFX(FM)
    be downgraded to a Class C0 facility to accommodate Akron's Petition
    for Rule Making to amend the FM Table of Allotment by allotting
    Channel 279C1 to Akron, Colorado, as that community's first local
    broadcast service. *Reclassification of License of Station KRFX(FM),
    Denver, Colorado*, 18 FCC Rcd 2330 (MB 2003) ("*KRFX(FM) Show Cause
    Order*"). *See* Application No. BPH-20030424AAO, Exhibit B-16A.

[^7]: *See* Jacor/Citicasters' June 27, 2003 Response to CARE Objection
    at 5.

[^8]: KBPI(FM) is licensed with an ERP of 100 kW at an HAAT of 301
    meters. It proposes to operate with an ERP of 100 kW at an HAAT of
    524 meters from WWGN-TV's tower.

[^9]: The KWGN-TV digital antenna will be positioned on the tower at the
    slot currently occupied by KBPI(FM).

[^10]: *See* Section 3(c) of the Engineering Report appended to each of
    the applications; *see also* Jacor/Citicasters' December 9, 2003
    Response to Informal Objections at 3.

[^11]: 42 U.S.C. §S 4231-4335.

[^12]: 16 U.S.C. § 470(f).

[^13]: It references a filing styled "Canyon Area Residents for the
    Environment (CARE) Complaint Regarding Registration of
    Citicasters/Clear Channel Tower and KWGN Channel 2 Auxiliary Tower"
    ("Tower Complaint")

    dated September 24, 2002. CARE also argues that "interference levels
    violate the public interest," *see* CARE Objection at 4, and
    references previous complaints about existing interference to
    businesses on Lookout Mountain.

[^14]: We do not reach the issue of the technical acceptability of the
    three modification applications. Nevertheless, we believe it would
    be helpful to comment briefly on CARE's objections in the event that
    these applications are refiled. First, with the exception of RFR
    exposure standards, CARE's NEPA objection fails to contain any
    specific factual allegations regarding how the three modification
    application fail to meet NEPA requirements. *See Area Christian
    Television, Inc.,* 60 RR 2d 862, 864 (1986). Second, with respect to
    CARE's argument regarding RFR exposure, we have evaluated each of
    the subject proposals and find that each complies with the
    Commission's current RFR exposure rules. *See* 47 C.F.R. §§
    1.1307(b), 1.1311. Finally, with respect to CARE's NHPA-based
    objection regarding the effects of the towers on the historic Lariat
    Trail and the National Register-listed Buffalo Bill's Grave and
    Museum and the Pahaska Teepee, we believe that the instant proposals
    do implicate the NHPA. We are unaware of any current authority
    supporting the contention that the replacement of an existing
    structure is not an "undertaking." However, construction of a
    replacement tower that does not "substantially increase the size of
    the existing tower" within stated parameters, that construction may
    be excluded from review under Section 106 of the National Historic
    Preservation Act. *See Nationwide Programmatic Agreement for Review
    of Effects on Historic Properties for Certain Undertakings Approved
    by the Federal Communications Commission,* Section III.C., adopted
    in *Nationwide Programmatic Agreement Regarding the Section 106
    National Historic Preservation Act Review Process,* FCC 04-222, 19
    FCC Rcd \_\_\_ (Rel. Oct. 5, 2004). Any resubmission would, of
    course, be subject to the environmental assessment requirements of
    Sections 1.1307 and 1.1311 of the Commission's Rules, as amended by
    the Programmatic Agreement.

[^15]: *See Notice of Proposed Rule Making (Ft. Collins, Westcliffe, and
    Wheat Ridge, Colorado)*, 18 FCC Rcd 4461 (MB 2003).

[^16]: *Report and Order (Ft. Collins, Westcliffe, and Wheat Ridge,
    Colorado)*, 19 FCC Rcd 4821 (MB 2004).

[^17]: ^?^ Meadowlark Objection, at 3.

[^18]: Meadowlark also states that the area and KRFX(FM)'s area and
    population coverage will shrink from 16,210 square kilometers and
    2,710,518 persons (using 2000 Census data) with its license
    facilities to 12,730 square kilometers and 2,596,399 persons with
    the instant proposal.

[^19]: Akron cites the figures in Meadowlark's Supplement, *viz.*, that
    of 97 FM stations in Colorado, Wyoming, and Idaho licensed as Class
    C facilities, 22 have heights below the minimum HAAT for Class C
    facilities (450 meters), and 17 of those could be deemed operating
    with full Class C facilities if one or more radials was omitted.
    These numbers amount to more than an "anomaly," in Akron's
    estimation.

[^20]: Akron cites *Letter to Mark Lipp, Esq.* BPH-20000316ACF,
    Reference 1800B3 (Associate Chief, Audio Div., Aug. 8, 2002).

[^21]: Akron alleges that, even if zoning restrictions at Lookout
    Mountain prohibit construction of a full Class C facility, Squaw
    Mountain and Eldorado Mountain permit such construction, and "Jacor
    has failed to make any demonstration that operation of KRFX(FM) from
    those two locations would result in any diminution of service."
    Akron objection at 7.

[^22]: *See* Application No. BPH-20030702AAK. The proposal is contingent
    on the reclassification of two stations not currently operating with
    full Class C facilities, KKNN-FM, Delta, Colorado and KSTR-FM,
    Montrose, Colorado. The staff released a letter ordering those two
    stations to show cause why they should not be downgraded to Class C0
    status on November 6, 2003. The KRVG(FM) proposal remains pending at
    this time.

[^23]: Western Slope avers that, if KFMD(FM) is properly reclassified as
    a Class C0 station, it will apply to upgrade KRVG(FM) to Class C1
    status.

[^24]: *See* Application No. BALH-20030530BLR. Cool Radio, LLC filed a
    petition to deny this application (and other applications in the
    transaction) on July 10, 2003. The application was granted May 28,
    2004 and consummated July 9, 2004.

[^25]: AGM and NRC cite 47 C.F.R. § 1.3 and *WAIT Radio v. FCC*, 418
    F.2d 1153 (D.C. Cir. 1969).

[^26]: The Class C1 KIDN-FM facility envisioned by AGM and NRC would
    increase the station's population coverage from 13,482 to 31,159
    (2000 Census data).

[^27]: Puopolo objection at 3.

[^28]: Jacor and Citicasters cite *Melody Music*, 345 F.2d 730 (D.C.
    Cir. 1965).

[^29]: *Streamlining of Radio Technical Rules in Parts 73 and 74 of the
    Commission's Rules,* 15 FCC Rcd 21649, 21667 (2000) ("*Streamlining
    of Radio Technical Rules*").

[^30]: *Letter to Ramsey L. Woodworth, Esq. and John Wells King, Esq.,*
    Reference 8920-MA (Aud. Serv. Div. Jan. 14, 1986) ("*Woodworth
    Letter*").

[^31]: *Id.* at 2.

[^32]: Using that HAAT computation methodology, KOSI(FM) was considered
    to have an HAAT of 495 meters, and KPKE(FM) was considered to have
    an HAAT of 490 meters, each of which met the Class C minimum.

[^33]: *Letter to Marilyn M. Strailman, Esq. and N. William Jarvis,
    Esq.*, Reference 8920-AED/KS (Aud. Serv. Div. June 10, 1987).

[^34]: *Letter to Malrite Radio & Television, Inc.*, Reference 8920-AED
    (Aud. Serv. Div. June 11, 1987) ("*Malrite Letter*"*)*.

[^35]: *Streamlining of Radio Technical Rules*, 15 FCC Rcd 21649,
    21661-63 (2000) ("*Second Streamlining Order*"*).*

[^36]: *Second Streamlining Order,* 15 FCC Rcd at 21667, citing *Crain
    Broadcasting, Inc.,* 8 FCC Rcd 4406, 4407 (1993) and the *Woodworth*
    and *Malrite Letters*.

[^37]: *See* Application Nos. BPH-20010214ABZ and BPH-20010214ACA,
    respectively. The applications were granted without letters on May
    8, 2001.

[^38]: *See* Application Nos. BPH-20020409AAF, granted without letter on
    June 12, 2002, and BMPH-20020927AAT, granted without letter on
    September 17, 2003. This latter application, as noted above,
    authorized facilities identical to those proposed by KBPI(FM) here.

[^39]: On May 21, 2004, Meadowlark opposed the request for expedited
    consideration.

[^40]: Meadowlark indicates that it has no objection to grant of the
    KBPI(FM) auxiliary application at the actual HAAT calculated in
    accordance with Section 73.313 of the rules.

[^41]: 47 C.F.R. §73.1670(a).

[^42]: The application also indicates that the auxiliary facility does
    not extend beyond the protected service contour proposed in the
    KPBI(FM) modification application.