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 Federal  Communications  Commission  ___  FCC  04-  298 
 Before  the  FEDERAL  COMMUNICATIONS  COMMISSION 

 Washington,  D.  C.  20554 

 In  re  Application  of  )  ) 
 LAKESIDE  TELECOMMUNICATIONS,  INC.  )  File  No.  BPED-  20000314ABN  )  Facility  ID  No.  36428 
 )  For  a  Construction  Permit  to  Modify  ) 
 NCE  Class  D  Station  WSSD(  FM)  )  at  Chicago,  Illinois  ) 

 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  December  28,  2004  Released:  January  5,  2005 
 By  the  Commission: 
 1.  The  Commission  has  before  it  the  January  15,  2003,  Application  for  Review  filed  by  Lakeside  Telecommunications,  Inc.  (  Lakeside),  licensee  of  noncommercial  educational  FM  (  NCE 
 FM)  Class  D  Station  WSSD(  FM),  Chicago,  Illinois  and  applicant  for  a  construction  permit  to  modify  the  WSSD  facilities.  Lakeside  seeks  review  of  a  January  3,  2003,  Media  Bureau  (  Bureau)  decision 
 (  Reconsideration  Decision)  1  denying  reconsideration  of  the  July  31,  2001,  staff  action  dismissing  the  modification  application  (  Letter  Decision).  2  For  the  reasons  discussed  below,  we  deny  the  Application 
 for  Review. 
 2.  Background.  The  Commission  initially  licensed  Class  D  NCE  FM  stations  to  serve  limited  areas  with  low-  powered  facilities.  3  Over  time,  concerns  arose  about  the  increasing  demand  for 
 NCE  FM  spectrum  and  the  inherent  inefficiencies  of  licensing  10-  watt  Class  D  stations.  In  1978  the  Commission  concluded  that  the  continued  licensing  of  these  stations  could  impede  the  development  of  the 
 emerging  NCE  FM  radio  service.  4  The  NCE  FM  Order  required  Class  D  stations  to  migrate  to  the  non-reserved  portion  of  the  FM  band  or  to  Channel  200,  where  they  would  be  considered  secondary 
 operations.  If  neither  of  these  options  was  available  however,  a  Class  D  station  was  required  to  move  to  a  reserved  band  channel  with  the  least  preclusionary  impact  on  other  potential  stations.  5  In  addition,  the 
 Commission  ended  Class  D  stations  protection  against  interference  and  imposed  a  permanent  freeze  on 

 1  Letter  to  Lakeside  Telecommunications,  Inc.  (MB  Jan.  3,  2003). 
 2  Letter  to  Lakeside  Telecommunications,  Inc.,  Ref.  No.  1800B3-  AED  (MMB  July  31,  2001). 

 3  Unlike  other  FM  stations  whose  facilities  are  based  on  an  effective  radiated  power  (  ERP)  and  a  computed  figure 
 for  height  above  average  terrain,  Class  D  stations  were  allowed  10  watts  transmitter  power  output  and  were  assumed  to  have  an  antenna  height  not  exceeding  100  feet.  Changes  In  The  Rules  Relating  To  Noncommercial  Educational 

 FM  Broadcast  Stations,  Second  Report  and  Order,  69  F.  C.  C.  2d  240,  242  n.  6  (1978)  (  NCE  FM  Order).  See  47  C.  F.  R.    73.  506(  a)(  1). 

 4  NCE  FM  Order,  69  F.  C.  C.  2d  at  244-  51;  see  also  Notice  of  Inquiry,  5  F.  C.  C.  2d  587,  588-  89  (1966). 
 5  NCE  FM  Order,  69  F.  C.  C.  2d  at  249. 
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 the  filing  of  applications  for  new  Class  D  facilities.  The  rules  adopted  in  this  proceeding  also  provided  for  exemption  from  these  relocation  directives  if  the  Class  D  station  modified  its  facility  to  at  least  the 
 minimum  Class  A  level  of  100  watts  ERP.  6  Stations  were  given  until  January  1,  1980,  to  file  the  necessary  application  to  upgrade  their  facilities  to  Class  A  status.  WSSD  did  not  file  an  application  for 
 Class  A  facilities  at  that  time. 
 3.  WSSD(  FM)  is  currently  licensed  to  operate  on  channel  201D  (88.1  MHz)  with  an  ERP  of  10  watts.  On  March  14,  2000,  Lakeside  filed  the  above-  referenced  application  to  increase  power  to  240 
 watts  and  to  change  WSSD(  FM)  s  status  to  a  Class  A  station.  The  application  was  accompanied  by  a  request  for  waiver  of  Section  73.509  of  the  Commissions  rules  7  because,  as  proposed,  WSSD(  FM)  would 
 receive  pervasive  prohibited  contour  overlap  from  each  of  two  co-  channel  stations,  WCRX(  FM),  Chicago,  Illinois  and  WBMF(  FM),  Crete,  Illinois.  8  With  the  exception  of  a  small  area  falling  entirely 
 over  water,  WSSDs  proposed  60  dBu  contour  would  be  completely  encompassed  by  WBMFs  40  dBu  interfering  contour.  Similarly,  WCRXs  40  dBu  contour  would  overlap  86  percent  of  the  proposed 
 WSSD  service  area.  In  its  Letter  Decision,  the  staff  concluded  that  Lakeside  had  failed  to  provide  sufficient  support  to  justify  a  waiver  of  the  Commissions  core  NCE  technical  rules  and  dismissed 
 Lakesides  application  for  failure  to  comply  with  Section  73.509(  a),  (b),  and  (d).  9  Lakeside  sought  and  the  staff  denied  reconsideration.  The  Bureau  noted  that  the  Commission  has  consistently  held  that,  absent 
 compelling  facts  and  circumstances,  enhanced  service  cannot  overcome  the  longstanding  prohibition  against  destructive  co-  channel  signal  contour  overlap.  10 

 4.  Discussion.  When  an  applicant  seeks  waiver  of  a  rule,  its  burden  is  to  plead  with  particularity  the  facts  and  circumstances  which  warrant  such  action.  11  Thus,  an  applicant  for  waiver 
 faces  a  high  hurdle  even  at  the  starting  gate.  12  While  the  Commission  must  consider  carefully  all  waiver  requests,  such  requests  must  be  supported  by  a  compelling  showing  in  order  to  be  granted.  13  A 
 waiver  is  appropriate  only  if  special  circumstances  warrant  a  deviation  from  the  general  rule  and  such  deviation  will  serve  the  public  interest.  14  In  its  Application  for  Review,  Lakeside  reiterates  its  assertion 
 that  there  are  compelling  reasons  for  waiver  of  Section  73.509  of  the  Commissions  rules  to  allow  Station 
 6  See  generally  47  C.  F.  R.    73.  512. 
 7  Lakeside  Petition  for  Waiver  and  For  Acceptance  and  Grant,  dated  March  14,  2000. 
 8  A  station  would  receive  prohibited  co-  channel  overlap  when  it  proposes  new  or  modified  facilities  that  would 
 result  in  an  overlap  of  the  proposed  stations  60  dBu  contour  and  the  40  dBu  contour  of  a  nearby  co-  channel  station.  See  47  C.  F.  R.    73.  509. 

 9  47  C.  F.  R.    73.509(  a),  (b),  (d). 
 10  See  City  of  Atlanta  (WABE-  FM),  82  F.  C.  C.  2d  125  (1980)  (Section  73.  509  waiver  denied  based  on  level  of 
 interference  received  from  both  co-  channel  and  third  adjacent  channel  stations). 
 11  See  Columbia  Communications  Corp.  v.  FCC,  832  F.  2d  189,  192  (D.  C.  Cir.  1987)  (citing  Rio  Grande  Family 
 Radio  Fellowship,  Inc.  v.  FCC,  406  F.  2d  644,  666  (D.  C.  Cir.  1968)  (per  curiam)). 
 12  WAIT  Radio  v.  FCC,  418  F.  2d  1153,  1157  (D.  C.  Cir.  1969)  (  WAIT  Radio). 

 13  Greater  Media  Radio  Co.,  Inc.,  15  FCC  Rcd  7090  (1999)  (citing  Stoner  Broadcasting  System,  Inc.,  49  F.  C.  C.  2d 
 1011,  1012  (1974))  (  Greater  Media). 
 14  Northwest  Cellular  Telephone  Co.  v.  F.  C.  C.,  897  F.  2d  1164,  1166  (D.  C.  Cir.  1990)  (citing  WAIT  Radio,  418  F.  2d 
 at  1157). 
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 WSSD(  FM)  to  upgrade  to  a  Class  A  facility  and  receive  prohibited  interference.  In  support  of  its  request,  Lakeside  claims  that  its  proposal  would  increase  the  WSSD(  FM)  service  area,  would  allow  it  to  continue 
 to  provide  minority  programming,  and  would  not  create  any  undesirable  precedent.  15  We  agree  with  the  Bureau  and  find  waiver  of  Section  73.509  unwarranted  on  the  facts  of  this  case. 

 5.  Lakeside  argues  that  grant  of  its  Class  A  application  will  increase  the  area  served  from  20  square  kilometers  to  50  square  kilometers  and  will  increase  the  population  served  from  92,791  persons  to 
 228,822  persons.  16  According  to  Lakeside,  almost  all  of  these  persons  are  African-  American  residents  of  Chicagos  inner  city,  and  the  station  is  programmed  and  will  continue  to  be  programmed  to  cater 
 specifically  to  their  needs.  17  The  Commission  has  consistently  held,  however,  that  enhanced  service  cannot  overcome  the  longstanding  prohibition  against  increases  in  harmful  signal  contour  overlap,  18 
 absent  compelling  facts  and  circumstances.  19  Here,  Lakeside  has  made  no  showing  that  the  benefits  of  increased  coverage  outweigh  the  detriment  of  the  nearly  100  %  interference  that  will  be  received. 
 Lakeside  has  also  not  shown  that  the  proposed  gain  area  is  underserved.  When  faced  with  a  choice  between  increased  coverage  on  one  hand,  and  lesser  but  adequate  coverage  without  prohibited 
 interference  on  the  other,  the  Commission  favors  the  latter.  20  It  is  also  well  established  that  the  Commission  will  not,  absent  extraordinary  circumstances,  waive  core  technical  rules  based  upon 
 ownership  or  programming  considerations.  21  Neither  the  pledge  of  particular  program  offerings,  nor  the  specific  audience  demographic  of  Station  WSSD(  FM),  justifies  waiver  of  the  Commissions  interference 
 protection  rules. 
 6.  As  additional  support  for  waiver,  Lakeside  contends  that,  since  grant  of  the  application  will  not  cause  interference  to  any  other  stations,  22  Section  73.509  can  be  waived  without  creating 
 undesirable  precedent.  We  reject  this  contention.  The  Commissions  policy  with  regard  to  prohibited  NCE  received  overlap  is  well  settled.  Since  1981,  the  Commission  has  delegated  authority  to  staff  to 
 waive  Section  73.509  when  warranted,  provided  such  [received]  interference  did  not  exceed  roughly  five  percent  of  the  proposed  service  area.  23  A  decade  later  the  Commission  elaborated  on  this  policy  in 

 15  Lakeside  contends  that  this  is  a  unique  situation  because  Station  WSSD(  FM)  is  a  Class  D  station  operating  in  a 
 very  crowded  urban  environment  in  Chicago,  Illinois.  Over  time,  Lakeside  argues,  other  NCE  FM  allotments  have  been  made  and  now  the  station  is  in  danger  of  becoming  extinct.  Lakeside  Application  for  Review  at  5. 

 16  Id.  This  analysis  impermissibly  relies  on  the  undesired-  to-  desired  signal  strength  ratio  method  rather  than  the 
 applicable  contour  overlap  standards.  See  infra  note  23. 
 17  Lakeside  Application  for  Review  at  7. 

 18  See,  e.  g.,  Greater  Media,  15  FCC  Rcd  at  7101-  7102;  City  of  Atlanta  (WABE-  FM),  82  F.  C.  C.  2d  at  127. 
 19  City  of  Atlanta  (WABE-  FM),  82  F.  C.  C.  2d  at  127  (denying  overlap  waiver  when  service  to  community  of  license  is 
 adequate  and  gain  area  is  well  served);  Open  Media  Corp.,  8  FCC  Rcd  4070,  4071  (1993)  (upholding  staff  action  denying  a    73.509(  a)  waiver  request  where  applicant  failed  to  show  that  service  to  the  community  of  license  was 

 deficient). 
 20  See  City  of  Atlanta  (WABE-  FM),  82  F.  C.  C.  2d  at  127. 

 21  Open  Media  Corp.,  8  FCC  Rcd  at  4071(  citing  U.  S.  C.    303(  f)). 
 22  Lakeside  Application  for  Review  at  8. 
 23  Delegation  of  Authority  to  the  Chief  of  the  Broadcast  Bureau  to  Waive  Small  Amounts  of  Interference  Received  by 
 Non-  Commercial  Educational  FM  Proposals,  49  R.  R.  2d  1524  (1981)  (emphasis  added).  The  Commission  replaced  this  signal  strength  ratio  methodology  with  a  contour  overlap  standard  in  1985.  Changes  In  The  Rules  Relating  To 
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 Educational  Information  Corporation,  noting  that  this  delegation  did  not  .  .  .  nullify  the  longstanding  prohibition  against  occurrences  of  harmful  overlap,  including  overlap  received.  24  In  so  doing,  it 
 reaffirmed  the  principle  that  Section  73.509  is  designed  both  to  prevent  each  NCE  station  from  causing  harmful  interference  to  other  NCE  stations  and  to  ensure  interference-  free  service  within  each  NCE 
 stations  own  service  contour.  The  WSSD(  FM)  proposal  is  in  fundamental  conflict  with  this  policy.  As  Lakeside  concedes,  only  50  square  kilometers  of  the  110  square  kilometers  within  the  stations  protected 
 service  area  would  enjoy  interference-  free  service. 
 7.  In  EIC,  the  Commission  also  reexamined  the  Section  73.509  waiver  policy.  It  explicitly  rejected  any  relaxation  of  this  policy  for  more  serious  co-  and  first  adjacent  channel  interference  that 
 can  result  in  the  loss  of  service  over  a  wide  area.  Thus,  the  Lakeside  proposal  is  in  fundamental  conflict  with  established  Commission  precedent.  Grant  of  the  Lakeside  application  would  turn  this  core  technical 
 requirement  on  its  head  by  authorizing  a  Class  A  station  that  would  receive  nearly  100  percent  co-  channel  overlap  from  two  other  stations.  We  note,  however,  that  dismissal  of  the  Lakeside  application  will  not 
 preclude  WSSD  from  continuing  its  present  operation,  nor  does  it  preclude  Lakeside  from  filing  a  technically  viable  proposal  using  any  non-  interfering  channel.  25 

 8.  As  a  final  matter,  Lakeside  claims  that  grant  of  this  application  will  correct  an  historical  anomaly.  26  According  to  Lakeside,  a  1983  renewal  challenge  engendered  substantial  confusion  at  the 
 station  and  caused  it  to  miss  the  previously  provided  Class  D  filing  period.  In  the  NCE  FM  Order,  the  Commission  provided  Class  D  stations  with  generous  opportunities  to  enable  continued  operation.  27  For 
 example,  Class  D  stations  were  given  the  opportunity  to  upgrade  to  Class  A  operations.  To  benefit  from  this  offer,  Class  D  stations  needed  only  to  have  filed  the  requisite  construction  permit  application  by 
 January  1,  1980.  WSSD(  FM)  did  not  avail  itself  of  this  opportunity  and  has  not  explained  why  a  renewal  challenge  raised  more  than  three  years  after  this  filing  deadline  has  relevance  to  its  failure  to  timely 
 pursue  this  potential  relief.  Moreover,  Lakeside  has  not  attempted  to  demonstrate  that  it  had  any  viable  technical  option  to  upgrade  to  Class  A  status  or  that  the  Commission  approved  similarly  defective 
 technical  proposals  filed  by  the  January  1,  1980,  deadline.  We  decline  to  grant  WSSDs  untimely  request  for  relief  that  would  be  well  beyond  that  afforded  any  other  Class  D  station. 

 Noncommercial  Educational  FM  Broadcast  Stations,  Memorandum  Opinion  and  Order,  MM  Docket  No.  20735,  50  Fed.  Reg.  27954  (July  9,  1985)  (  1985  Order).  The  signal  strength  ratio  method  served  to  identify  the  area  in  which 
 the  quality  of  service  was  predicted  to  fall  below  the  minimally  acceptable  level.  The  contour  overlap  method  identifies  not  only  the  area  in  which  quality  of  service  falls  below  the  minimally  acceptable  level,  but  also  the  larger 
 area  in  which  the  quality  of  service  is  predicted  to  be  better  than  minimally  acceptable  overall,  but  nonetheless  may  be  diminished  for  some  listeners.  See  Board  of  Education  of  City  of  Atlanta  (WABE-  FM),  11  FCC  Rcd  7763,  7764 
 n.  1  (1996).  The  1985  Order  also  modified  the  Bureaus  delegated  authority  to  grant  waivers  to  conform  to  this  new  methodology.  Specifically,  such  authority  is  now  limited  to  10  %  overlap  received  compared  to  5  % 
 interference  received  under  the  old  policy.  1985  Order,  50  Fed.  Reg.  at  27959-  27960. 
 24  Educational  Information  Corp.,  6  FCC  Rcd  2207,  2208  (1991)  (  EIC). 

 25  See  47  C.  F.  R.      73.  506(  b);  73.  512(  d).  See  also  Quinnipiac  College,  8  FCC  Rcd  6285,  6286  (1993)  (  If  Class  D 
 FM  stations  .  .  .  are  unable  to  .  .  .  comply  with  applicable  Commission  rules,  they  may  remain  as  secondary  Class  D  FM  stations  and  continue  to  provide  the  service  they  have  always  provided  unless  and  until  it  causes  interference  to 

 another  primary  NCE  station.). 
 26  Lakeside  Application  for  Review  at  8. 

 27  See  supra  para.  2. 
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 9.  Conclusion.  For  the  foregoing  reasons,  Lakesides  Application  for  Review  IS  DENIED. 
 FEDERAL  COMMUNICATIONS  COMMISSION 

 Marlene  H.  Dortch  Secretary 
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