**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | Facility ID No. 87812        |
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| **R&S Media**                    | ) | File No. BMPH-20000229ABO    |
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| For Application to Modify the    | * | File No. BLH-20031229ABR     |
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| Construction Permit of Station   | * |                              |
| KBNH(FM),                        | * |                              |
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| Homedale, Idaho                  | * |                              |
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| For Application for License to   |   |                              |
| Cover Construction Permit        | * |                              |
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| For Request for Program Test     | ) |                              |
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+----------------------------------+---+------------------------------+

MEMORANDUM OPINION AND ORDER

# AND ORDER TO SHOW CAUSE

**Adopted: April 13, 2004** **Released: April 13, 2004**

By the Chief, Media Bureau:

1\. The Media Bureau ("Bureau") has before it (1) the captioned
application of R&S Media ("RSM") to modify the facilities of new unbuilt
commercial FM station KBNH(FM), at Homedale, Idaho; and (2) the May 4,
2001, petition for reconsideration ("Petition") of the staff's grant of
that application submitted by Citicasters Co. ("Citicasters"), licensee
of KCIX(FM), Garden City, Idaho.[^1] The Bureau also has before it RSM's
application for license to cover that construction permit and its
concomitant request for program test authority ("PTA"), each filed on
December 29, 2003. For the reasons set forth below, we grant
Citicasters' petition for reconsideration to the limited extent
discussed below, rescind the grant of the KBNH(FM) construction permit
application, and dismiss without prejudice RSM's license application and
PTA request.

2\. **Background**. RSM was granted a construction permit on March 23,
1999, to build new station KBNH(FM) at Homedale, Idaho.[^2] On February
29, 2000, RSM filed the captioned modification application to change its
transmitter site (the "Application"), requesting a waiver of the
prohibited contour overlap requirements of Section 73.215(a) and the
minimum separation requirements of Section 73.215(e) of the Commission's
rules.[^3] The Application was unopposed, and on March 30, 2001, the
staff waived Sections 73.215 (a) and (e) and granted the
Application.[^4] On May 4, 2001, Citicasters filed its Petition.[^5]

3\. **Procedural Matters**. As indicated above, Citicasters did not
oppose the Application. Consequently, Citicasters now requests standing
under the provisions of Section 1.106 (b)(1)[^6] to seek reconsideration
as an entity "whose interests are adversely affected" and had "good
reason" for not participating earlier in the proceeding.[^7] Citicasters
also asserts that KBNH(FM)'s waiver request is substantively deficient
and that grant of the waiver was erroneous, even under the precedent
cited by the Bureau. Citicasters also maintains that the Bureau lacked
the delegated authority to waive Sections 73.215(a) and (e). Finally, in
its reply, Citicasters states that by granting the Application, the
Commission has subjected KCIX(FM) to interference when it is entitled to
protection by the Commission's rules. This, Citicasters submits, is a
modification of KCIX(FM)'s license. Accordingly, by not notifying
KCIX(FM) of the Application's filing and affording KCIX(FM) the right to
protest, Citicasters contends that the Bureau's grant of the Application
violated Section 316 of the Communications Act.

4\. *Discussion.* [Standing/Timeliness of Petition]{.underline}*.*
Citicasters asserts that it is adversely affected because the Bureau
action waiving Sections 73.215(a) and (e) "allows KBNH(FM) to cause
prohibited contour overlap to KCIX(FM)," and that the "good reason" for
Citicasters not participating earlier in the proceeding was that
Citicasters was not aware of the technical specifics of the
Application.[^8] In this regard, Citicasters states that neither RSM nor
the Bureau served Citicasters with a copy of the Application or the
decision granting the Application, and that the public notices
announcing the Application's acceptance and grant did not indicate that
the Application included requests to waive Sections 73.215(a) and (e).

5\. Although we find that Citicasters may be adversely affected by the
staff's waiver of the overlap requirements of 73.215(a),[^9] we conclude
that Citicasters has not shown "good reason" for not filing its
objection earlier in the proceeding. First, neither RSM nor the Bureau
was required to serve Citicasters with a copy of the Application. Our
broadcast application processing rules did not require such service in
this proceeding and Citicasters has not presented any precedent to
indicate otherwise.[^10] The public notice announcing that the
Application had been accepted for filing was published on March 29,
2000;[^11] therefore, Citicasters had constructive notice of its
filing*.*[^12] Further, the public notice specified that the Application
was for a minor modification of construction permit, and specified the
station's call letters, community of license and frequency. Hence, the
public notice provided sufficient information to alert Citicasters that
the Application could potentially impact service by adjacent-channel
KCIX(FM), which operates in the same service area as KBNH(FM).[^13]

6\. The staff granted the Application on March 30, 2001, twelve months
after the release of the public notice of acceptance.[^14] With the
exercise of reasonable diligence, Citicasters had more than sufficient
time to examine the Application and file an objection, which it failed
to do.[^15] Citicasters' assertion that it was not aware[^16] that RSM
had requested a waiver of Sections 73.215 (a) and (e) is not "good
reason" to justify the untimely filing of its petition.[^17]
Nevertheless, we believe that, due to the nature of the issue involved
in this proceeding, consideration of Citicasters' arguments is in the
public interest.[^18]

7\. **Substantive Matters***.* *Section 73.215(e) waiver*. With respect
to RSM's request for waiver of Section 73.215(e), Citicasters maintains
that, contrary to RSM's threshold showing, fully-spaced sites are
available. Citicasters states that it has identified five suitable,
privately owned sites that are fully-spaced to KCIX(FM) that would
provide the requisite principal community coverage to Homedale. [^19]

8\. In *Greater Media Radio Company, Inc.*,[^20] the Commission stated
that the threshold and public interest criteria formerly used to analyze
Section 73.207 waiver requests are applicable to requests for waiver of
the minimum spacing requirements contained in Section 73.215(e).[^21]
The staff determined that RSM had met the threshold criteria for waiving
our spacing rules by demonstrating the unavailability of both its
initially proposed site and any suitable fully-spaced sites; and by
demonstrating that the site proposed in the Application is the least
short-spaced available. In addition, RSM demonstrated that grant of the
short-spacing waiver would be in the public interest.

9\. Concerning the waiver of Section 73.215(e), the staff found that RSM
had shown that the Bureau of Land Management ("BLM") had jurisdiction
over the initially proposed site and that BLM had concluded that the
site was unavailable for tower construction. RSM conducted an intensive
search for a non- or lesser-short-spaced transmitter sites. This search
included investigation of the few remaining non-BLM parcels of land in
the fully-spaced areas. We found that RSM had demonstrated that such
locations would require a tower structure in excess of 1000 feet to
overcome terrain obstructions and achieve line-of-sight to Homedale.
However, RSM stated that BLM indicated that it would oppose the
construction of any tower in excess of 200 feet on private land adjacent
to BLM land, and we found that BLM's position "effectively prevented
KBNH from servicing Homedale with a 70 dBµ signal from these more remote
sites to the west of Homedale." We held that RSM had demonstrated that
the proposed site was the only possible site acceptable to BLM that
would provide line-of-sight to Homedale.

10\. We find unpersuasive Citicasters' assertion that non-short-spaced
sites are available. First, RSM, collaborating with BLM officials, spent
more than six months evaluating various sites, both private and
BLM-controlled, seeking to locate a site that was both acceptable to BLM
and compliant with the spacing rules. RSM supplemented its waiver
request on December 4, 2000, detailing BLM-controlled land, private
lands, and other potentially available sites.[^22] The result of RSM's
exhaustive search was the site proposed in the Application, a site which
it determined was available and the least-short-spaced. Moreover, it
appears that the sites identified by Citicasters are unsuitable. They
are mountain top sites located in an inaccessible rugged wilderness area
devoid of adequate roads and electrical power.[^23] We therefore reject
Citicasters' proffer of fully spaced sites from which, it claims,
KBNH(FM) could provide a principal community contour to Homedale, and we
affirm the grant of RSM's request for waiver of Section 73.215(e).

11\. *Section 73.215(a) waiver*. Next, Citicasters asserts that the
factors RSM presented in support of its waiver request are
inaccurate.[^24] In granting the waiver, we acknowledged that no power
reduction or directional antenna could completely eliminate the
prohibited overlap caused to KCIX(FM), because the transmitter site
proposed by RSM lies within KCIX(FM)'s 60 dBu contour.[^25] Based on
RSM's showing, however, we concluded that this was a unique situation
and granted RSM's request for waiver of Section 73.215(a).[^26]

12\. In its petition for reconsideration, Citicasters challenges RSM's
calculations and asserts that RSM presents "inaccurately low figures"
relating to the populations and areas subject to prohibited contour
overlap and the size and population of the white area.[^27] Citicasters
submits that the amount of contour overlap is "significantly greater"
than represented by RSM and that the number of persons who would receive
a first aural service from the KBNH(FM) proposal is substantially fewer
than specified in the Application.[^28]

13\. We have reviewed Citicasters' technical exhibit and find that the
staff made no error in its decision to grant the KBNH(FM) waiver request
and Application. As noted above, there is no available and suitable site
from which prohibited contour overlap with KCIX-FM could be completely
avoided. Also as noted above, the use of a directional antenna or power
reduction would not avoid the creation of new predicted overlap with
KCIX(FM). This was a significant factor in considering RSM's waiver
request.[^29] Additionally, a reduction in KBNH(FM)'s power toward
KCIX(FM) by use of a directional antenna would have minimal effect on
the area and population that would receive prohibited overlap from
KCIX(FM), but it would substantially diminish coverage of the white and
gray areas that would receive service from KBNH(FM)'s 100-kW
operation.[^30]

14\. Citicasters' engineering exhibit does not demonstrate an error of
fact or law in the Staff Decision granting the KBNH(FM) Section
73.215(a) waiver request and Application sufficient to warrant
reconsideration of that action. RSM's exhibits clearly indicate that it
undertook an initial analysis of overlap impact with respect KCIX(FM)
under Section 73.215 using the standard prediction methodology in
Section 73.313 of the Commission's rule. It also augmented that
analysis, as is often done by applicants presenting unique waiver
requests, with supplementary data using the desired-to-undesired signal
contour ratio to support its request. The differences between the areas
and populations in the overlap and white areas derived from the standard
methodology and those determined by use of the contour ratio method are
neither unexpected nor so great as to alter the public interest calculus
under which the staff evaluated and approved the KBNH(FM) Application.

15\. *Delegated authority*. Citicasters also maintains that the staff
lacked delegated authority under former Sections 0.283(a)(10) and
(a)(14)(ii) to waive Section 73.215.[^31] In this regard, Citicasters
maintains that the 14.1-km (8.76-mile) short spacing permitted by the
waiver is substantial, and because it cannot identify a Commission
decision waiving 73.215 (a) or (e), this "novel question" should be
referred to the full Commission.

16\. The Application presents a close question as to whether the staff
was required under the former delegation rules to refer the contour
overlap and short-spacing waivers proposed by RSM to the Commission *en
banc.* Current Section 0.283, however, no longer requires referral of
short-spacing waivers to the full Commission. Rather, it requires
referral of matters involving "novel questions." That is not the case
here. *Greater Media* provides controlling Commission-level precedent
for the Bureau to follow. Accordingly, the Bureau may appropriately
render the decision on reconsideration.

17\. In its decision, the staff also noted that RSM\'s showing was
similar to that made in *Beasley Broadcasting of Philadelphia
(WXTU)*,[^32] in which a Philadelphia station was granted a 12.2-km
(7.6-mile) spacing waiver with respect to Section 73.207 to overcome
patently defective coverage in its community of license. In *Beasley,*
as in the instant case, the applicant undertook a thorough search for a
non-short-spaced or lesser-short-spaced transmitter site, and also
provided radial data showing line-of-sight problems in locating an
acceptable transmitter site. The staff also relied on *Megamedia*, in
which the Commission granted a 12.9-km (8-mile) short-spacing after an
exhaustive search for a site to remedy excessive radiofrequency
emissions. Therefore, RSM's 14.1-km (8.76-mile) waiver request, when
compared to comparable spacing waiver decisions, is not novel, and ample
Commission precedent existed to support the staff action here.

18\. Similarly, *Greater Media* also discusses Section 73.215(a) waiver
standards. Citing the Commission's *Reconsideration Order* in the rule
making proceeding adopting Section 73.215, the Commission acknowledged
in *Greater Media* that waiver is appropriate in "a small number of
cases" where, for example, the antenna could not be directionalized to
avoid creation of contour overlap and waiver would serve the public
interest by allowing retention of existing service to an underserved
area.[^33] The staff determined that KBNH(FM) could not avoid the
creation of new contour overlap with WCIX(FM) by use of a directional
antenna and that grant of the KBNH(FM) proposal would provide new
service to a large "white" or "gray" area. Additionally, the staff
observed that it had in the past granted waivers of other rules where
new service would be provided to large white areas. [^34] Thus, the
waiver grant on the facts presented is not novel or unprecedented.

19\. *Section 316 of the Communications Act.*[^35] In its reply,[^36]
Citicasters asserts that by granting the Application and subjecting
KCIX(FM) to interference, from which it is otherwise entitled to
protection under the Commission's rules, it was error to modify
KCIX(FM)'s license without invoking the "protest" provisions of Section
316 of the Communications Act of 1934, as amended (the "Act").[^37]

20\. Accordingly, we will rescind the grant of the Application and
retain it and the petition for reconsideration in pending status; in
light of that action, we will also dismiss without prejudice RSM's
pending license application and PTA request. This *Order* will
constitute the requisite notice to Citicasters under Section 316 of the
Act, and we will accord Citicasters 30 days from the release date of
this document to show cause why the modification application should not
be granted.[^38] Under Section 316(c) of the Act,[^39] a protest to a
license modification is subject to the requirements of Section 309 of
the Act for petitions to deny, *viz*., the affected station must
demonstrate a substantial and material question of fact to obtain a
hearing under Section 316(a)(2).[^40] Accordingly, within 30 days of the
release of this *Order,* Citicasters SHALL SHOW CAUSE why its license
should not be modified by grant of the subject KNBH(FM) Application. The
Citicasters submission must be filed in paper form in triplicate with
the Office of the Secretary, Federal Communications Commission, 445
12^th^ Street, S.W., Washington, DC 20554.[^41] If Citicasters files no
such statement, we will deem it to have waived its right to protest the
modification and to have consented to the modification of its license by
the KNBH(FM) modification application.[^42]

21\. **Conclusion/Actions**. For the reasons set forth above, IT IS
ORDERED, that the Citicasters petition for reconsideration IS GRANTED TO
THE EXTENT INDICATED HEREIN and IS DENIED IN ALL OTHER RESPECTS. IT IS
FURTHER ORDERED that grant of the modification application for station
KNBH(FM), Homedale, Idaho (File No. BMPH-20000229ABO) IS RESCINDED and
the Application IS RETURNED TO PENDING STATUS. IT IS FURTHER ORDERED,
that the application of R&S Media for license to cover (File No.
BLH-20031229ABR) and its request for program test authority ARE
DISMISSED WITHOUT PREJUDICE. We will send a copy of this *Memorandum
Opinion and Order and Order to Show Cause* by Certified Mail -- Return
Receipt Requested to:

Marissa G. Repp, Esq.

Hogan & Hartson, L.L.P.

555 13^th^ Street, N.W.

Washington, DC 20004-1109

Robert Lewis Thompson, Esq.

Taylor Thiemann & Aitken, L.C.

908 King Street, Suite 300

Alexandria, VA 22314

> FEDERAL COMMUNICATIONS COMMISSION

W. Kenneth Ferree

Chief, Media Bureau

[^1]: On December 29, 2003, RSM filed both a license application (File
    No. BLH-20031229ABR) to cover the construction permit and a request
    for program test authority to commence operation with these
    facilities. We will dismiss these filings, without prejudice, in
    view of the process begun here.

[^2]: File No. BPH-19970804MC.

[^3]: 47 C.F.R. § 73.207 requires that KBNH(FM) and second-adjacent
    channel Class C station KCIX(FM), Garden City, Idaho must be
    separated by at least 105 km. However, as a Section 73.215 proposal,
    the minimum spacing is 99 km. The separation proposed by KBNH(FM)
    was 90.9 km from KCIX(FM), therefore a waiver was required.

[^4]: *Letter to Mr. Robert Thompson, Esq.,* (MMB, Mar. 30, 2001)
    ("Staff Decision").

[^5]: An Opposition and Reply were filed on May 30 and June 11, 2001,
    respectively.

[^6]: 47 C.F.R. § 1.106(b)(1).

[^7]: 47 C.F.R. § 1.106 (b)(1) states in pertinent part that:

    > . . . any party to the proceeding, or any other person whose
    > interests are adversely affected by any action taken by the
    > Commission or by the designated authority, may file a petition
    > requesting reconsideration of the action taken. If the petition is
    > filed by a person who is not a party to the proceeding, it shall
    > state with particularity the manner in which the person\'s
    > interests are adversely affected by the action taken, and shall
    > show good reason why it was not possible for him to participate in
    > the earlier stages of the proceeding.

[^8]: Citicasters cites *Pacific Gas and Electric Company*, 14 FCC Rcd
    13400 (1999) ("*Pacific Gas*").

[^9]: *Cf. The Moody Bible Institute of Chicago, Inc*., 66 F.C.C.2d 629
    (1977) (claim of interference to facility confers status as "party
    aggrieved or whose interests are affected").

[^10]: *See First Century Broadcasting, Inc.*, 100 F.C.C.2d 761 (1985)
    (An applicant does not have a duty to serve a copy of its
    application on others).

[^11]: *See Broadcast Applications*, Report No. 24701, rel. Mar. 29,
    2000.

[^12]: *See Selma Television, Inc.(WSLA-TV),* 29 F.C.C.2d 522 (1971);
    *see also Harold* *S. Schwartz*, 2 FCC Rcd 5524 (1987); *Forus FM
    Broadcasting of New York, Inc*., 7 FCC Rcd 7880 (1992); *Rivoli
    Realty Co*., 27 F.C.C.2d 1004 (1971).

[^13]: C*f. Winstar Wireless, Inc.*, 14 FCC Rcd 20533 (1999) (the
    Commission has wide latitude regarding the information included in a
    public notice, provided that the notice gives "fair warning" of the
    scope of the described action). Also, we note that Citicasters'
    reliance on *Pacific Gas*, *see* Note 8, *supra*, is misplaced. In
    that case, the Wireless Telecommunications Bureau ("WTB") released
    no public notice of the proposal. While it was not required to do so
    under the Commission's rules, the WTB believed that considering the
    ostensibly untimely petition would serve the public interest. In the
    instant case, public notice was published, as prescribed by the
    rules. The *Winstar* case is thus distinguishable and not persuasive
    authority on the facts presented here.

[^14]: *Cf. Press Broadcasting Company*, 3 FCC Rcd 6640 (1988)(even if
    there is a legitimate reason for not timely filing an objection,
    waiting two and one half months to file an objection "is difficult
    to consider prompt"). In this case, Citicasters had 12 months to
    file an informal objection prior to the grant.

[^15]: *Cf. Clovis Broadcasters*, 61 F.C.C.2d 362 (1976) (absent
    compelling circumstances, a 30-day period between public notice and
    the grant of an application is sufficient time, with reasonable
    diligence, to review the application); *see also State of Oregon*,
    11 FCC Rcd 1843 (1996); *Oro Spanish Broadcasting*, 5 FCC Rcd 5500
    (1990); *Shenandoah Communications, Inc*., 51 F.C.C.2d 378 (1975)
    and *Quixote Broadcasting Co., Inc*., 32 F.C.C. 2d 740 (1971).

[^16]: We note that RSM's opposition includes an affidavit from Leopoldo
    Ramos ("Ramos"), a principal of RSM, in which he declares he
    communicated with principals and the ownership of KCIX(FM) during
    the period December 1, 1999, to January 25, 2000, prior to the
    filing of the subject application, concerning the proposed short
    spacing to KCIX(FM). Ramos states that, in his effort to enter into
    a negotiated short-spacing agreement with the KCIX(FM) principals,
    he advised them of the nature and extent of the short spacing and
    interference, the areas and populations affected, and RMS's
    intention to file the instant waiver request. Ramos states counsel
    for KCIX(FM)'s owner informally agreed not to oppose the subject
    application. KCIX(FM) denies making any agreement with Ramos.

[^17]: *See Citicasters Licenses, Inc*., 17 FCC Rcd 1997 (2002) and
    *KOLA, Inc*., 11 FCC Rcd 14,297 (1996).

[^18]: 47 C.F.R. § 1.106(c)(2).

[^19]: In support of these contentions, Citicasters relies on contour
    studies that use an alternate signal propagation methodology, which
    it claims is expressly authorized by 47 C.F.R. § 73.313(e).

[^20]: *Greater Media Radio Company, Inc*, 15 FCC Rcd. 7090 (1999),
    *petition for reconsideration dismissed,* 15 FCC Rcd 20485 (2000).

[^21]: The Commission cited *John Lamar Hill*, 70 F.C.C.2d 153, 44 RR 2d
    431 (1971) (present site no longer suitable), *Townsend Broadcasting
    Corp.,* 62 F.C.C.2d 511, 38 RR 2d 880 (1976) (non-short-spaced sites
    are unavailable and site selected is the least short-spaced site);
    *Megamedia*, 67 F.C.C.2d 1527 (1978) (non-short-spaced sites are
    unavailable and site selected is the least short-spaced site).

[^22]: *See* RSM's December 4, 2000, "Further Supplement to 'Request for
    Waiver.'"

[^23]: *See St. Maries, Idaho and Spokane, Washington, et al.,* 14 FCC
    Rcd 17012 (MMB 1999) (the suitability of a site relates to a site's
    feasibility, which includes availability of electrical power and
    road access); *Topsail Beach and Wilmington, North Carolina*, 3 FCC
    Rcd 159 (MMB 1988), *recon.* *granted*, 3 FCC Rcd 3129 (MMB 1988)
    (it is unfair to require a station to undertake extreme measures, in
    terms of difficulty and expense, to locate a transmitter at an
    unfeasible site in order to meet a site restriction);
    *Cuban-American Limited,* 2 FCC Rcd 3264 (Rev. Bd. 1987), *sub.
    history omitted* (circumstances that are extremely hazardous,
    expensive or disruptive can render a transmitter site unsuitable
    despite evidence of technical feasibility).

[^24]: RSM indicated that it had investigated the use of a directional
    antenna in an effort to reduce or eliminate the prohibited contour
    overlap received by KBNH(FM) from KCIX(FM), but that its
    calculations showed this would have the minimal effect of reducing
    the population that would potentially receive interference to
    KCIX(FM) from 9 persons to 1 person, and would diminish coverage of
    \"white\" and \"gray\" service areas. ("White area" is an area over
    which no station currently provides fulltime coverage within its
    protected service contour, and \"gray\" area, where the inhabitants
    are within the protected service contour of only one station.) Also,
    as discussed above in the context of the 73.215(e) waiver request,
    RSM showed that no other transmitter sites were available at which
    prohibited contour overlap with KCIX-FM could be completely avoided.

[^25]: Prohibited contour overlap that causes interference within the
    KCIX-FM 60 dBu service contour would occur even were KBNH to
    downgrade.

[^26]: The staff also found that, in addition to covering a large white
    area, the KBNH(FM) proposal would provide a first local service to
    Homedale, provide service to approximately 345,000 persons within
    its 60 dBµ contour, and support BLM's efforts to protect the
    environmentally sensitive Owyhee Reservoir Basin.

[^27]: Citicasters indicates that RSM submitted its figures not based on
    the contour-overlap methodology, but instead using the
    undesired-to-desired "contour ratio" methodology; Citicasters claims
    that this methodology has never been employed in Section 73.215
    short-spacing cases. Based on the "correct application of the
    contour overlap method used in Section 73.215 short-spacing cases,"
    writes Citicasters, KBNH(FM) will cause overlap of 315 square
    kilometers including 90 persons within the KCIX(FM) 1 mV/m contour,
    and KBNH(FM) will receive overlap of 142 square kilometers
    containing 7,023 persons within its 1 mV/m contour. Petition for
    Reconsideration, Engineering Statement, at 11.

    Additionally, Citicasters argues that RSM "presents an inaccurate
    picture of the size and population of the white area to which grant
    of the KBNH(FM) application will provide the first aural service.
    Citicasters claims that KBNH(FM) will provide a first aural service
    to only 145 persons in a 3,439-square-kilometer area, which
    represents only 0.04 percent of the population within the KBNH(FM) 1
    mV/M contour. Petition for Reconsideration, Engineering Statement,
    at 11-12.

[^28]: Citicasters' states that operation of KBNH(FM) from one of the
    fully spaced sites would provide greater white area service than
    that proposed in the subject application.

[^29]: *See* *Greater Media*, 13 FCC Rcd at 7099, ¶ 18.

[^30]: The staff acknowledged that the population within the white/gray
    areas was not great, but it emphasized that "the areas themselves
    are extensive." Staff Decision, at 4. Citicasters has not shown that
    conclusion to be erroneous.

[^31]: Former 47 C.F.R. § 0.283(a)(10)(2001) provided in pertinent part
    that:

    > Proposals for new or modified FM facilities that would create
    > substantial new prohibited overlap or station separation
    > shortages...shall be referred to the Commission.

    Former section 0.283(a)(14)(ii)(2001) provided in pertinent part
    that:

    > Any application or request presenting novel questions of fact, law
    > or policy which cannot be resolved under outstanding precedents or
    > guidelines shall be referred to the Commission.

    The rule has since been revised to reflect the Commission's
    reorganization and expand the authority delegated to the Chief,
    Media Bureau. The language requiring referral to the Commission any
    "novel questions of fact, law, of policy which cannot be resolved
    under existing precedents and guidelines" was retained and is now
    found in 47 C.F.R. § 0.283(c).

[^32]: *Beasley Broadcasting of Philadelphia (WXTU),* 100 F.C.C.2d 106
    (1985).

[^33]: *Greater Media*, 15 FCC Rcd at 7095, 7098, *citing* *In the
    Matter of Amendment of Part 73 of the Commission\'s Rules to Permit
    Short-Spaced FM Station Assignments by Using Directional Antennas*,
    6 FCC Rcd 5356, 5360 n. 27 (1991).

[^34]: In determining that grant of the subject application/waiver would
    be in the public interest, the staff found that approximately
    one-third of the area within KBNH(FM)'s proposed 60 dBµ contour
    consisted of \"white area,\" over which no station currently
    provides fulltime coverage, and that a significant additional
    portion of KBNH(FM)'s proposed 60 dBµ service area consists of
    \"gray\" area, where the inhabitants are within the protected
    service contour of only one other station. The proposed 60 dBµ
    contour also would encompass portions of U.S. Highways 20 and 26
    that presently receive no radio service. While the populations of
    these "white" and "gray" areas are only 864 persons and 208 persons
    respectively, the areas themselves are extensive and, outside of
    Alaska, rare.

[^35]: 47 U.S.C. § 316.

[^36]: 47 C.F.R. § 1.45(c) prohibits petitioners from raising new
    matters in reply pleadings. We will waive that provision here due to
    the importance of the statutory issue raised.

[^37]: 47 U.S.C. § 316 (a)(1), in pertinent part, provides that:

    > Any station license or construction permit may be modified by the
    > Commission either for a limited time or for the duration of the
    > term thereof, if in the judgment of the Commission such action
    > will promote the public interest, convenience, and necessity. . .
    > No such order of modification shall become final until the holder
    > of the license or permit shall have been notified in writing of
    > the proposed action and the grounds and reasons therefore, and
    > shall be given reasonable opportunity, of at least thirty days, to
    > protest such proposed order of modification.

    This provision applies to both "direct" and, as here, "indirect"
    modification of station licenses. *Western Broadcasting Company v.
    FCC*, 674 F.2d 44, 49 (D.C. Cir. 1982).

[^38]: *See* 47 C.F.R. § 1.87(a).

[^39]: 47 U.S.C. § 316(c).

[^40]: *See Paul and Nancy Schumacher*, 3 FCC Rcd 7148 n.1 (MMB 1988).
    These requirements include that the allegations in the petition must
    be supported by an affidavit of person with actual knowledge of the
    facts contained. *Pacific Gas and Electric Company*, 17 FCC Rcd
    20900, 20906 (2002).

[^41]: Courtesy copies also may be served on Jerome Robinson, Michael
    Wagner, and Peter Doyle of the Audio Division, Media Bureau.

[^42]: *See, e.g.,* *Pacific Gas and Electric Company*, 17 FCC Rcd 98,
    101-102 (W.T. Bur. 2001).