Federal Communications Commission FCC 08-242
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Living Way Ministries, Inc.
for a Construction Permit for a New 
Noncommercial Educational FM Translator 
Station on Channel 220 at Sun Valley, California
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File No. BPFT-19981001TA
MEMORANDUM OPINION AND ORDER
Adopted:  October 8, 2008 Released: October 10, 2008
By the Commission:
I. INTRODUCTION
1. In this Memorandum Opinion and Order we deny Petitions for Reconsideration 
(Petitions) filed by the San Bernardino Community College District, licensee of station KVCR(FM) 
(KVCR) and by National Public Radio, Inc. (NPR) (collectively Petitioners) seeking 
reconsideration of the Commissions Memorandum Opinion and Order reinstating the application (the 
Application) of Living Way Ministries, Inc. (Living Way) for an FM translator in Sun Valley, 
California (Reinstatement Order).1 Our decision parallels the Commissions resolution of comparable 
issues in the Educational Media Foundation decision.2 We have carefully considered Petitioners 
arguments and find nothing that persuades us to reconsider either the Reinstatement Order or Educational 
Media Foundation.  We therefore deny the Petitioners reconsideration petitions.
  
1 Living Way Ministries, Inc., Memorandum Opinion and Order, 17 FCC Rcd 17054 (2002).  The KVCR Petition 
and the NPR Petition were filed on October 15, 2002.  Living Way filed a Consolidated Opposition to Petition for 
Reconsideration on November 8, 2002 (Consolidated Opposition).  NPR filed a Reply to Opposition to NPRs 
Petition for Reconsideration on November 21, 2002 (NPR Reply).   KVCR filed a Reply to the Consolidated 
Opposition to Petition for Reconsideration on Nov. 21, 2002, (KVCR Reply).  The National Association of 
Broadcasters and the North Carolina Association of Broadcasters filed Comments after the deadline for filing 
Petitions for Reconsideration.  The Commissions Rules make no provision for the filing of comments in 
proceedings of this kind and we therefore will dismiss the Comments as unauthorized pleadings.  
2  Educational Media Foundation, Memorandum Opinion and Order, 19 FCC Rcd 5843 (2004) (Educational 
Media Foundation).  The Educational Media Foundation Order relied, in part, on the Commissions Living Way 
Order.  See id. at 5844.
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II. BACKGROUND
A. The Living Way Application
2. The Application3 specified a new translator station operating on a second adjacent 
channel to, and within the protected 1 mV/m (60 dBu) contour of, Station KUSC-FM, Los Angeles, 
California.4 Pursuant to Section 74.1204(d) of the Commissions Rules5 (the Rules), Living Way 
asserted that its application was grantable because the area of predicted interference to KUSC-FM was 
unpopulated.6
3. The staff initially dismissed Living Ways application because its lack of population 
exhibit relied on United States Census Block data which do not accurately reflect the actual location of 
residences and other structures in an area.7 Living Way sought reconsideration of the staff decision, 
arguing that the Census Block data had been accepted in other contexts.  It also provided photographs 
purporting to show the predicted interference area was unpopulated.8 However, one photograph depicted 
four smokestacks, which the staff deemed indicative of industrial activity, and, accordingly, denied 
Living Ways reconsideration petition.9  
B. Living Ways Application for Review
4. Following denial of its Petition for Reconsideration, Living Way filed an Application for 
Review accompanied by an engineering statement which predicted a smaller interference area.10 The 
predicted interference area was smaller because, in the interim, the Commission had relaxed the 
protection standard for second adjacent channel interference for stations operating in the reserved band.11  
  
3 See File No. BPFT-19981001TA.
4 KUSC-FM is licensed to the University of Southern California and serves Los Angeles, California on Channel 
218.  See File No. BRED-20050729BAU.
5 47 C.F.R.  74.1204(d). 
6 47 C.F.R.  74.1204(a).  Section 74.1204(a) generally prohibits overlap of a translators predicted F(50,10) 
interference contour with a full-service FM stations F(50,50), protected service contour.  Section 74.1204(d), 
however, provides exceptions to otherwise prohibited contour overlap. Applicants may qualify for the exception by 
demonstrating that the overlap area falls over water or that, despite contour overlap, no actual interference will 
occur due to intervening terrain, lack of population or such other factors as may be applicable.  Id.  
7 See Letter to Jeffrey D. Southmayd, Esq., Ref. No. 1800B3JDB (MMB May 19, 2000). 
8 Living Way Petition for Reconsideration, filed June 23, 2000.
9 See Letter to Jeffrey D. Southmayd, Esq., Ref. No. 1800B3JDB (MMB [undated]). 
10 Application for Review, December 15, 2000.
11 See id., Attachment B at 1, 2.  The Commission modified the second adjacent channel protection requirements to 
conform to the commercial overlap standard set forth in 47 C.F.R.  73.215.  See 1998 Biennial Regulatory Review -
Streamlining of Radio Technical Rules in Parts 73 and 74 of the Commissions Rules, Second Report and Order, 15 
FCC Rcd 21649, 21685 (2000) (Streamlining Order). See also 47 C.F.R.  74.1204(a).  Under the revised 
standard, the predicted 100 dBu signal strength contour of the proposed reserved band facility may not overlap the 
predicted 60 dBu signal strength contour of  a protected second adjacent channel full-service reserved band 
authorization or application.  See 47 C.F.R.  73.509.  Based on this new and relaxed +40 dB second adjacent 
channel protection requirement, Living Way estimated that the translator would have an interference area with a 
18.4 meter radius from its transmitting antenna.  See Application for Review at 5-6, Attachment B at 1-2.  That is, 
the predicted interference area was defined as that where the undesired (U) translator signal would exceed the 
second adjacent channel interference threshold.   
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As evidence that the predicted interference area was unpopulated, Living Way submitted a United States 
Geologic Survey (USGS) topographic map showing that there were no structures within the predicted 
interference area.12
5. In the Reinstatement Order, the Commission accepted Living Ways demonstration of 
lack of population in the predicted interference area and reinstated Living Ways application.  As 
guidance to future translator applicants, the Reinstatement Order stated that USGS maps presumptively 
establish lack of population in an area of predicted interference which applicants may define using the 
undesired-to-desired signal ratio method (U/D analysis).13  
C. Petitions for Reconsideration of the Reinstatement Order
6. Petitioners14 contend that the Commissions guidance that applicants may employ U/D 
analysis to show compliance with Section 74.1204(d) is impermissible.  KVCR claims the guidance is a 
new standard which . . . [the Commission] had previously rejected;15 both Petitioners cite decisions and 
rulemaking orders for the proposition that the threshold values in Section 74.1204(a) apply only at the 
boundary of a full-service FM stations protected contour, not within it.16 NPR also claims that the
  
12 See Reinstatement Order, 17 FCC Rcd at 17056.
13  Id. at 17057-17058.  (In this item, the term U/D analysis is used synonymously  with signal strength ratio 
methodology.  See Educational Media Foundation, supra n.2, 19 FCC Rcd at 5843, para. 4.)
14 KVCR claims that activation of the Living Way translator would have an immediate impact on listeners of 
KVCR because KVCR operates with a power of 3.8 kW with a directional antenna aimed in the direction of Sun 
Valley.  [Living Ways] proposed 60 dBu contour is spiked toward the KVCR transmitter site, resulting in a clash of 
the two signals.  KVCR Petition at 2.  KVCR avers that the Commissions failure to consider interference to 
KVCR should be redressed.  Id. KVCRs assertions concerning spiked signals and clashing interference are 
unaccompanied by any technical documentation that would allow us to conclude that KVCR would receive 
interference from the Living Way translator. See Letter to Hogan and Hartson, LLP, 13 FCC Rcd 25286 (MMB 
1998) (citing Amendment of Part 74 of the Commissions Rules Concerning FM Translator Stations, 5 FCC Rcd 
7212 (1990), modified 6 FCC Rcd 2334 (1991), recon. den., 8 FCC Rcd 5093 (1993) (Translator Order)). See 
also Board of Education for the City of Atlanta, Memorandum Opinion and Order, 11 FCC Rcd 7763, 7766 (1996)
(City of Atlanta) (A claim that a station could not be received because of the interference environment and/or 
terrain considerations deemed too vague and undefined in light of petitioners failure to specify what standards 
were used).   These deficiencies make it problematic whether KVCR has standing to contest the Living Way 
application.  However, in the interest of compiling a complete record, we will consider the issues KVCR raises in its 
petition.  In response to Living Ways contention that NPR lacks standing, see Living Way Opposition at 2, NPR 
asserts that it is an interested party within the meaning thereof in 47 C.F.R.  1.106(b), and that it has association 
(sic) standing (citing, inter alia, Warth v. Seldin, 422 U.S. 490, 511 (1975)).  See NPR Reply at 2-6 and Exhibit A.  
We find that NPR has standing, see infra para.8, and will consider the issues it raises in its Petition. 
15 KVCR Petition at 3.
16 NPR contends that if lack of population determinations are based on the Section 74.1204(a) thresholds, listeners 
immediately adjacent to the predicted interference area could have their currently superior interference protection 
degraded to the minimally acceptable protection afforded listeners at the periphery of the full-service stations 
protected contour.  See NPR Petition at 9 (citing City of Atlanta, 11 FCC Rcd at 7764 n.1).  In City of Atlanta, the 
Commission rejected a proposal by two full-service FM licensees to short space their stations and accept any 
resultant interference.  The proposal was unacceptable, inter alia, because the licensees had not sought waiver of 
Section 73.509 of the Rules to permit the short-spacing.  Id. at 7764.  In the cited footnote, the Commission 
observed that contour overlap methodology is distinguishable from U/D analysis because the former defines an area 
where the quality of service is predicted to be better than minimally acceptable overall but nonetheless may be 
diminished for some listeners, whereas the latter defines an area where signals are at the minimally acceptable 
level.  We find the observation correct, but not controlling here.  City of Atlanta involved potential interference 
between two full-service FM stations.  The instant case involves potential interference from a translator to a full-
(continued.)
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Grandfathered FM Station Order confirms its claim that the signal strength ratio method does not 
demonstrate what Section 74.1204 requires -- the absence of harmful interference.17  KVCR argues that 
the Commissions Low Power FM Order discredited U/D analysis.18 Both Petitioners submit that a non-
decisional reference in a Commission order on reconsideration in the State of Oregon proceeding19
establishes that contour overlap analysis is the only methodology accepted by the Commission for lack 
of actual interference determinations in the context of Section 74.1204(d).20 NPR contends that the 
legislative history21 of the 2001 D.C. Appropriations Act22 forbids the Commission to allow applicants to 
employ U/D analysis in connection with lack of actual interference showings pursuant to Section 
74.1204(d).23 It alleges that allowing applicants to use U/D analysis in Section 74.1204(d) showings 
(Continued from previous page)    
service station.  The difference is significant.  Section 74.1203 of the Rules provides protection from translator 
interference to all listeners of full service stations.  Thus, if any interference were to occur from Living Ways 
translator, the translator would not be permitted to continue to operate unless the interference was remedied.  See 
Section 74.1203(a)-(b) of the Rules.  There is no comparable interference-protection rule that applies to short-spaced 
full-service stations of the kind at issue in City of Atlanta. In any event, we note that, subsequent to City of Atlanta, 
the Commission has approved U/D analysis in the context of translators without considering the theoretical 
possibility that, despite predicted lack of interference, signal quality might be better than minimally acceptable 
overall but nonetheless may be diminished for some listeners.  See, e.g., Association for Community Education, 19 
FCC Rcd 12682, 12687 (2004) (clarifying the use of U/D analysis to demonstrate lack of interference).
17 NPR Petition at 9 (citing Grandfathered Short-Spaced FM Stations, Report and Order, 12 FCC Rcd 11840, 11843 
( 1997) (Grandfathered Short-Spaced FM Order).  We find NPRs reliance on the Grandfathered Short-Spaced 
FM Order misplaced.  That Order says nothing about Section 74.1204 of the Rules and, in fact, approves the use of 
U/D analysis - rather than contour overlap - for prediction of interference from short-spaced FM stations. See id. at 
11843, para. 7.  Moreover, the Grandfathered Short-Spaced FM Order states that contour overlap methodology is 
not effective in controlling interference when prohibited overlap exists. Id. We note that the Living Way translator 
interference contour and the KUSC service contour overlap in a manner that would be prohibited but for the fact 
that actual interference is limited to an unpopulated area. 
18 See KVCR Petition at 3, n.2 (citing Creation of a Low Power Radio Service, Report and Order, 15 FCC Rcd 2204 
(sic, 2205), 2230 (2000) (Low Power FM Order).  (Subsequent history omitted.)  We disagree with KVCRs 
interpretation of the Low Power FM Order.  There, the Commission chose distance separation as an interference-
protection standard for Low Power FM stations only because it deemed distance separation more efficient and less 
resource-intensive than either contour overlap methodology or U/D analysis.  See id. at 2233 para. 70.  The 
Commission, therefore, did not discredit U/D analysis, it merely found it less efficient than distance separation in 
a particular, limited, instance, i.e., Low Power FM station allocation.
19 See KVCR Petition at 3.  See also NPR Petition at 6-7 (citing State of Oregon Acting by and Through the State 
Board of Higher Education for the Benefit of Southern Oregon State College, Memorandum Opinion and Order, 16 
FCC Rcd 4344 (2001) (Oregon Reconsideration Order)).
20 See NPR Petition at 7; KVCR Petition at 3.
21 H.R. Rep. No. 106-567, 106 Cong., 2d. Sess. (Report 106-567) at 3.  NPR relies on the sentence in the House 
Report stating: The bill requires Congressional authority for the FCC to eliminate or reduce any interference 
standards on the radio dial and characterizes that statement as a farther-reaching mandate.  NPR Petition at 13.  
Taken in context, however, it is clear that the statement applies only to Low Power FM stations and is not, as NPR 
claims, farther-reaching.  Report 106-567 deals with, and only with, Low Power FM stations, not FM translators, 
i.e., the stated purpose of H.R. 3439 . . . is to modify the FCC rules authorizing the operation of low-power FM 
stations. Id.
22 Pub. L. No. 106-553,  632, 114 Stat. 2762, 2762A-111-112 (2000).  
23 See NPR Petition at 13.
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[c]ontravenes a Congressional directive requiring the Commission to maintain existing interference 
protection.24
7. NPR also submits that the guidance in the Reinstatement Order should be rescinded 
because the decision to modify Section 74.1204(d) in the context of an individual translator application 
was arbitrary, capricious, and an abuse of discretion.25 It contends that the guidance concerning the use 
of U/D analysis affects the interference protection rights of full-service stations, and, thereby, effectively 
amends Section 74.1204(d) without the opportunity for notice and comment in violation of the 
Administrative Procedure Act (APA).26
III. DISCUSSION
8. As a preliminary matter we reject Living Ways challenge to NPRs standing to seek 
reconsideration of the Reinstatement Order.27 We are satisfied that the documentation submitted by NPR 
establishes its nexus with potentially affected full-service noncommercial FM member stations and that 
the cases NPR cites amply support its claim of association (sic) standing.28
9. We do not agree with Petitioners that, in adopting Section 74.1204(d), the Commission 
intended to hold applicants to a rigid contour overlap standard to demonstrate lack of actual 
interference.29 The Translator Order specifically disclaims any such explicit standard.30 It affords 
applicants flexibility in demonstrating lack of actual interference31 and gives the Commission comparable 
flexibility in evaluating applicants showings.32
10. The Commissions intent in adopting Section 74.1204(d) is manifest in the rules 
codification. The first part of the rule sets forth the over water exception specifically in terms of contour 
overlap.  The second part of the rule does not mention contour overlap.  It states the lack of actual 
interference exception in broader terms, i.e., the effects of terrain on signal attenuation, lack of 
population and other factors as may be applicable.33 Petitioners contend that this second part of the rule 
  
24 Id.
25 Id. at 10.
26 5 U.S.C.  553.  See KVCR Petition at 2-3, NPR Petition at 9-10.  But see para. 21, supra.  
27 See Consolidated Opposition at 2.
28 NPR may intervene on behalf of any or all of its member stations based on the well-settled principle of 
association (sic) standing.  NPR Reply at 3.  The Living Way translator is located within the KUSC-FM protected 
60 dBu contour, hence the licensee of KUSC-FM would have standing to protest in its own right.  Thus, based on 
the concept of associational standing, NPR may participate in this proceeding.  See id. (citing e.g., U.S. Telecom 
Association v. FCC, 295 F.3d 1326, 1330 (D.C. Cir. 2002)). 
29 See KVCR Petition at 2; NPR Petition at 5-9.
30 See Translator Order, 5 FCC Rcd at 7230, para. 131, supra n.14 (We believe it is inappropriate and unnecessary 
to introduce explicit standards for determining whether actual interference exists.).
31 See id. at paras. 128-129. ([The 74.1204 (d) exceptions] will allow the processing staff to take special 
circumstances into account when they are brought to the staffs attention.  *  *  *  [W]e [will] leave it to applicants 
to decide the level of analysis they will apply to determine the facilities they will request.).
32 See id. at para. 129. (We will also not specify a degree of precision for determining contours and predicting 
interference.).
33 47 C.F.R.  74.1204(d).
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implies that all analyses of terrain, unpopulated areas, and other factors that may establish lack of actual 
interference, must be based on an area defined by overlap of the protected contour of a full-service station 
and the interfering contour of a proposed translator.  We find no such implication.  Had the Commission 
intended to engraft in the contour overlap area to the second part of the rule, it would have done so.  As 
developed below, the absence of a reference to contour overlap area in the second part of the rule 
accurately reflects the Commissions judgment that an explicit standard for evaluating actual interference 
was inappropriate and helps effectuate its directive to flexibly consider other factors. 
11. NPRs claim that Commission decisions have interpreted Subsection 74.1204(d) 
consistently34 to require contour overlap analysis in Section 74.1204(d) showings is mistaken in several 
respects.  First, we do not accept NPRs inference that the Commission deemed U/D analysis unreliable 
when it rejected a proposal to define interference in terms of U/D ratios35 in the rulemaking proceeding 
that led to the Translator Order.   In the Translator Order, the Commission rejected each of the several 
proposals for an actual interference definition.  It opted instead for a flexible approach, and concluded it 
is inappropriate and unnecessary to introduce explicit standards for determining whether actual 
interference exists.36
12. Second, NPRs out-of-context quote from the Channel 6 Order  these [U/D] ratios are 
not valid at the higher field strengths close to the transmitter37  fails to support its claim that U/D 
analysis is an inherently unreliable methodology for predicting interference between FM stations.  The 
Commissions statement was made in the context of an application [that] severely violates the 
requirement, i.e., only when a Channel 6 station approaches the existing NCE-FM transmitter site.38  
However, the Commission also stated that under normal circumstances, the U/D analysis thresholds 
provide adequate protection against objectionable interference.39 In any event, NPRs and KVCRs 
reliance on the Channel 6 Order is misplaced because the Commission specifically rejected applying the 
Channel 6 Order interference criteria to FM translators.40
  
34 See NPR Petition at 6. 
35 Id. at 8.
36 Translator Order, 5 FCC Rcd at 7230, para. 131, supra n.14.  The rulemaking proposal involved defining actual
interference in terms of a translator exceeding -20 dB below the measured 10V/m signal of a full service station.  It 
would have required the Commission to define full-service stations contours by field strength measurements instead 
of the contour prediction method specified in 47 C.F.R.  73.333 and a revision of the full-service station protected 
contour values in  74.1204(b)(1-2).  See City of Atlanta, 11 FCC Rcd at 7767 n.3.  ([Field strength measurements] 
generally are not a reliable means of locating a particular protected or interfering contour.).
37 NPR Petition at 8-9 (citing Changes in the Rules Relating To Noncommercial, Educational FM Broadcast 
Stations, Memorandum Opinion and Order, 58 RR 2d 629, 639, para. 56 (1985)) (Channel 6 Order).  KVCR 
makes the same claim.  KVCR Petition at 3-4. 
38 Channel 6 Order, 58 RR 2d at 639 (emphasis added).  We also note that, twenty-five years later, and with benefit 
of experience with hundreds of applications based on lack of population within a U/D ratio method-predicted 
interference area the Commission said the severe violation circumstance posited in the 1985 Translator Order 
was unlikely and, in any event, failed to establish that U/D analysis is technically flawed per se.  See Educational 
Media Foundation, 19 FCC Rcd at 5845, paras. 5-6, 8 (citing Grandfathered Short-Spaced FM Order, 12 FCC Rcd 
at 11843, para. 7, and 47 C.F.R.  73.213(a)).
39 See Channel 6 Order, 58 RR 2d at 639.
40 It found that the strict non-interference provisions of 47 C.F.R.  74.1203 adequately protect a Channel 6 station 
in the unlikely event it receives interference from an FM translator.  There is no comparable strict non-interference 
rule governing interference to Channel 6 reception from full-service FM stations.  See Channel 6 Order, 56 RR 2d at 
629, n.6. 
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13. Furthermore, we cannot reconcile Petitioners claim that the Grandfathered Short-
Spaced FM Order invalidated U/D analysis with the fact that, in that Order, the Commission not only 
sanctioned U/D analysis, it actually required the affected applicants to use U/D analysis when estimating 
potential interference and codified that requirement in Section 73.213(a) of the Rules.41  
14. We also remain unpersuaded by Petitioners argument that the Oregon Decision and the
Oregon Reconsideration Order establish that actual interference must be defined using contour overlap 
analysis. In large part, Petitioners rest their arguments on the following statement in the Oregon 
Reconsideration Order:
We pointed out in our earlier decision [the Oregon Decision] that the staff has 
consistently held that the term "lack of population" as used in  74.1204(d), means 
no population in the overlapping coverage area between a full-service station and 
the translator station seeking a waiver of  74.1204(a).42
The underlined text is inaccurate.  In fact, the Oregon Decision says nothing about the staff holding 
consistently or otherwise  that an applicant must demonstrate lack of population in the overlapping 
coverage area between a full-service station and the translator station.43 Rather, the quoted statement is 
mere dicta that lacks decisional significance.  The Commission dismissed the petition on procedural 
grounds as repetitious.  Later in its Order, the Commission discussed a matter neither essential nor even 
relevant to the dismissal, i.e., the petitioners mischaracterization of the reasons why the Commission 
ruled against it in the underlying Oregon Decision.44  Thus, we find unavailing Petitioners argument that 
  
41 See 47 C.F.R.  73.213(a)(1)(i) (specifying, inter alia, that [c]o-channel interference is predicted to exist . . . at 
all locations [within the normally protected contour] where the undesired . . . F(50,10) field strength exceeds a value 
20 dB below the desired . . . F(50,50) field strength of the [protected] station. ).   See also Educational Media 
Foundation, 19 FCC Rcd at 5845 (citing Grandfathered Short-Spaced FM Order, 12 FCC Rcd at 11843).  
Petitioners contention that U/D analysis is inherently unreliable is further undercut by the exception to prohibited 
contour overlap contained in the rules governing LPTV stations and TV translators and boosters.  For example, 47 
C.F.R. 74.705(e) allows applicants to demonstrate lack of actual interference, despite contour overlap, based on 
Longley-Rice terrain-dependent propagation prediction methods. 
42 Oregon Reconsideration Order, 16 FCC Rcd at 4345, para. 5, supra n.17 (emphasis added) (citing State of 
Oregon, Translator Station K202AP, Memorandum Opinion and Order, 15 FCC Rcd 11842, 11844 (2000) (Oregon 
Decision)).  See NPR Petition at 6-7, NPR Reply at 7-8, KVCR Petition at 3. 
43 The only reference to consistent staff practice contained in the Oregon Decision is: The staff has consistently 
held that lack of population means no population, not merely low or negligible population. Oregon Decision, 15 
FCC Rcd at 11844 (emphasis in original).  Contrary to the inaccurate statement in the Oregon Reconsideration 
Order, supra, para. 14, the Commission in the Oregon Decision did not say no population in the overlapping 
coverage area.     
44 The mention of staff practice arose, only incidentally, when - after declining to address the petition on the merits 
- the Commission took the opportunity to correct two instances of petitioners mischaracterizing the Commissions 
reasoning underlying the Oregon Decision, only one of which is relevant here, i.e., the petitioners allegation that 
we [the Commission] arbitrarily created the impossible requirement that a waiver applicant prove lack of 
population under  74.1204(d).  The Commission countered this mischaracterization - that applicants were required 
to prove a negative - by citing two unreported actions whereby the staff accepted the use of topographic maps to 
establish lack of population in an overlap area.  We note that the acceptance of no interference showings in a 
contour overlap area does not imply that we would not accept showings limited to areas of predicted interference, as 
in the case of the Living Way translator, defined using U/D analysis.  See Association for Community Education, 
Inc.,19 FCC Rcd at 12687, supra n.16 .  (In a recent decision, we addressed and approved the staff's practice of 
permitting translator applicants to use the undesired-to-desired (U/D) signal strength ratio methodology to 
demonstrate lack of interference in the context of Section 74.1204(d)  (footnote omitted).  The same method may 
also be used to demonstrate the potential for interference under 74.1204(f).  Id. (citing Living Way Ministries, 17 
(continued.)
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an erroneous characterization of the interference standard in the Oregon Reconsideration Order
establishes that actual interference determinations must be based on contour overlap.45  
15. Turning to the Oregon Decision itself, we believe Petitioners read the order too narrowly 
when they conclude that contour overlap analysis is the only suitable means of establishing lack of actual 
interference.  The only explicit holding in the Oregon Decision is that there is no de minimis exception to 
the lack of population provision in Section 74.1204(d), i.e., that the rule literally means what it says -
no population whatsoever.  We do not see how that holding can be construed to be either an endorsement 
or rejection of any particular means of defining a predicted interference area.
16. It is significant, however, that in the Oregon Decision, the Commission considered (but 
ultimately rejected) the applicants attempt to demonstrate that, despite contour overlap, the translator did 
not cause actual interference within the meaning of Section  74.1204(d).46 Thus, after the Commission 
rejected the applicants argument about a de minimis exception to the no population provision of 
Section 74.1204(d), it went on to say that the applicant did not show any other factors that would warrant 
an exception under 74.1204(d).47 The Oregon Decision thus indicates that even if the protected contour 
of a full-service station and a translator overlap, the Commission will consider demonstrations of lack of 
actual interference based on other factors.48  
(Continued from previous page)    
FCC Rcd 17054, 17056 (2002) (when demonstrating that no actual interference will occur due to . . . other factors 
pursuant to Section 74.1204(d), an applicant may use the U/D ratio method). 
45 Non-decisional statements in orders dismissing pleadings on procedural grounds are dicta which lack binding 
effect.  See, e.g.,  Massachusetts Community Antenna Television, Memorandum Opinion, Declaratory Ruling and 
Order, 2 FCC Rcd 7321 (1987), where the Commission rejected as precedent, statements made in a District Court 
Order that dismissed a party for lack of standing.  It found that any substantive pronouncements in that Order are 
merely dicta, and have no precedential value in the matter before us.  Id. at 7321.  Cf. Bokunewicz v. Purolator 
Products, Inc., 907 F.2d 1396, 1399 (3rd Cir. 1990) (holding that, in any Order, everything after denial of 
jurisdiction is dicta, pure and simple.).  The suitability of contour overlap analysis vs. U/D analysis was not 
before the Commission in the Oregon Reconsideration Order.  As the D.C. Circuit has noted, our experience as 
judges [is] that unless an issue is squarely presented in a case, any discussion of the question in the opinion (dicta) is 
only a preliminary view and therefore not to be given precedential weight.  Time Warner Entertainment Co. v. 
FCC, 144 F.3d 75, 79 (D.C. Cir. 1998).
46 The applicants translator had operated for some time pursuant to Special Temporary Authority and the applicant 
submitted an affidavit from its Director of Broadcasting stating he had neither received interference complaints nor 
encountered interference during his field inspections.  The Commission reviewed the affidavit but found it so 
inadequate that we are unable to make a determination as to lack of actual interference based on a conclusory 
statement such as this. Oregon Decision, 15 FCC Rcd at 11844-11845.  The applicant could have prevailed had it 
submitted a competent affidavit from a bona fide listener of the station showing lack of actual interference. Cf. 
Association for Community Education, 19 FCC Rcd at 12688, supra n.16 (rejecting claim of interference from 
translator based on station engineers statement that his car radio experienced interference at specific sites within 
full-service stations protected contour).
47 Oregon Decision, 15 FCC Rcd at 11884.
48 An applicant, however, bears the burden of establishing lack of actual interference.  The Commission will 
dismiss the application when an applicant has not met its pleading burden under Section 74.1204(d), e.g., as it did in 
the Oregon Decision.  Id. at 11885. 
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17. Finally, even if we assumed, arguendo, that the Oregon Reconsideration Order had 
correctly described consistent staff practice at the time, we could not infer from that fact that the staff is 
foreclosed from drawing on its experience and expertise to refine its practices or that it is bound to any 
particular technical standard when doing so.  In the Translator Order, the Commission explicitly 
declined to adopt a standard for evaluating actual interference pursuant to Section  74.1204(d).49  
Moreover, refinement of staff practices is fully consistent with Translator Orders directive that the staff 
should be flexible50 in evaluating applications that invoke Section  74.1204(d).51 Thus, refinements in 
staff practice not only are permissible, they advance the significant Commission goals articulated in 
Educational Media Foundation, i.e., providing translator applicants with site selection flexibility and 
preventing translator interference to full-service FM facilities.52 Importantly, this flexible approach to 
translator licensing is backstopped by the requirement that a translator station must cease operation if it 
causes actual interference to any authorized broadcast station and the translator station cannot promptly 
eliminate this interference.53
18. NPR is plainly wrong in claiming that the legislative history54 of the 2001 D.C. 
Appropriations Act55 prevents the Commission from relying on U/D analysis in support of showings of 
lack of actual interference.  The legislation, by its very terms, applies only to the Low Power FM 
(LPFM) Radio service.56 NPRs attempt to show otherwise by reliance on legislative history is contrary 
to long-standing precedent establishing that parties may not  rely on legislative history when a statute is 
clear and unambiguous.57 Moreover, when it enacted the LPFM Rules, the Commission clearly said they 
do not apply to full-service stations and FM translators.58  
  
49 See Translator Order, 5 FCC Rcd at 7230, para. 131, supra n.14.
50 Id. at 7229-7230, paras. 128, 131.
51 Oregon Decision, 15 FCC Rcd at 11844.  See Reinstatement Order, 17 FCC Rcd at 17057, supra n.1. (U/D 
analysis appropriately used to demonstrate that the Living Way translator would exceed the Section 74.1204(a) 
second adjacent channel interference criterion only in an unpopulated area within an approximate twenty-meter 
radius of the translators antenna);  See also Educational Media Foundation,19 FCC Rcd at 5846, para 8, n.7 
(approving U/D analysis that showed that the Section 74.1204(a) threshold was exceeded only in a 2.6 meter radius 
from the translator antenna, and describing U/D analysis as a useful and reliable tool for determining areas where 
actual interference is likely to occur.). 
52 Educational Media Foundation, 19 FCC Rcd at 5846, supra n.2.
53 See 47 C.F.R.  74.1203(b)-(c).
54 H.R. Rep. No. 106-567, 106 Cong., 2d. Sess. 153-154.  See also nn. 21-23, supra, and accompanying text. 
55 Pub. L. No. 106-553,  632, 114 Stat. 2762, 2762A-111-112 (2000).  
56 The legislation provides that [t]he Federal Communications Commission shall modify the rules authorizing the 
operation of low-power FM radio stations, as proposed in MM Docket No. 99-25 . . .  Pub. L. No. 106-553,  632, 
114 Stat. 2762, 2762A-111-112 (2000).
57  See, e.g., Implementation of Section 309(j) of the Communications Act - Competitive Bidding for Commercial 
Broadcast and Instructional Television Fixed Service Licenses.  Reexamination of the Policy Statement on 
Comparative Broadcast Hearings, First Report and Order, 13 FCC Rcd 15920, 15932 (1998) (It is a well-
established principle of statutory construction that when congressional intent, as reflected in the statutory language, 
is clear that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously 
expressed intent of Congress,) (citing Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 842-43 (1985)). 
See also Landreth Timber Co. v. Landreth, 471 U.S. 681, 685 (1985) (It is axiomatic that [t]he starting point in 
every case involving construction of a statute is the language itself.) (citations omitted).
58 Low Power FM Order, 15 FCC Rcd at 2234 (2000).
Federal Communications Commission FCC 08-242
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19. KVCR also claims that the Reinstatement Order unjustifiably relied on the Streamlining 
Order when it supposedly established a new standard  U/D analysis  for Section 74.1204(d) 
showings.59 First, as NPR agrees, 60 it is clear from the context of the Reinstatement Order, that the term 
new standard refers to the Streamlining Orders change in the second adjacent channel interference 
standard  and not to the Commissions guidance on permissive use of topographic maps and U/D 
analysis.  Second, as developed in this decision, the guidance in the Reinstatement Order rested not on the 
Streamlining Order  which is silent on the other factors that may demonstrate lack of actual 
interference  but on the earlier Translator Orders provisions mandating a flexible approach in the 
evaluation of Section 74.1204(d) showings and the lack of any explicit standard for such evaluations.61
20. NPRs argument that the Reinstatement Order impermissibly relied on two staff 
decisions as authority to contravene Commission rules, case precedent and policy to establish Section 
74.1204(d) standards is without merit.62 The two staff decisions cited in the Reinstatement Order 
merely illustrate instances in which U/D analysis has been employed to confirm lack of actual 
interference pursuant to Section 74.1204(d).  The authority underlying the Reinstatement Order resides 
in the Translator Order, not the two staff decisions.
21. Petitioners are incorrect in claiming that the Reinstatement Order impermissibly 
amended Section 74.1204(d) in violation of the APA.63 The permissive guidance and clarification in 
the Reinstatement Order are consistent with the flexibility inherent in Section 74.1204(d), the 
Commissions rejection of an explicit standard64 in the Translator Order, and the protection provided to 
other broadcast stations against translator station interference by Section 74.1203 of the Rules.  As the 
D.C. Circuit has held, an agency action does not become a rule amendment merely because it supplies 
crisper and more detailed lines than the authority being interpreted.65  
  
59  See KVCR Petition at 2, KVCR Reply at 2.
60 See NPR Reply at 9 ([T]he Technical Streamlining Order merely reconciled a prior difference between the 
reserved FM and non-reserved FM spectrum with regard to the minimum distance separation between second
adjacent channels.).
61 See nn.49-50, supra, and accompanying text.
62 NPR Petition at 7-8 n.18 (citing Reinstatement Order, 17 FCC Rcd at 17056, para. 5, supra n. 1).  The staff 
decisions cited are Letter to Christine J. Newcomb, Esq., New FM Translator, Ref. No. 1800B3-BHW (MMB April 
26, 2001) and Letter to John Garziglia, Esq., Manahawkin, N.J., Ref. No. 1800B3-JDB (MMB Sept. 26, 1966).
63 See supra para. 7.
64 See supra para. 9. 
65 American Mining Congress, et al. vs. Mine Safety and Health Administration et al., 995 F.2d 1106, 1112 (D.C. 
Cir. 1993).   See also Cost-Based Terminating Compensation for CMRS Providers; Interconnection Between Local 
Exchange Carriers and Commercial Mobile Radio Service Providers; Implementation of the Local Competition 
Provisions of the Telecommunications Act of 1996; Calling Party Pays Service Offering in the Commercial Mobile 
Radio Services, Order, 18 FCC Rcd 18441, 18450, at para. 22 (2003):
The D.C. Circuit has repeatedly held that interpretive rulings are properly used to 
clarify the original meaning and application of an agency's substantive rules. The 
Supreme Court in reaffirming the authority of agencies to interpret their own rules 
stated that a new APA rulemaking is required only if an agency adopt[s] a new 
position inconsistent with any of the [agency's] existing regulations.'  As discussed 
previously, the clarifications are fully consistent with our rules. Thus, [this item] is not 
subject to APA notice and comment requirements.  (citations omitted.)  
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IV. CONCLUSION
22. Petitioners have not substantiated their contention that U/D analysis is inherently 
defective or that it has been repudiated by the Commission as a reliable means of determining actual 
interference.  It has been relied upon, indeed required, in multiple other contexts, including in the rules 
governing short-spaced commercial FM stations and television translators.66 As noted in Educational 
Media Foundation, the Commissions reliance on U/D analysis in evaluating Section 74.1204(d) 
showings has been validated by the interference-free operation of literally hundreds of translators 
authorized on that basis.67 Should actual interference occur from a translator authorized based on a U/D 
analysis, full-service stations are fully protected by the strict non-interference provisions of Section 
74.1203(d) of the Commissions Rules.68 Few stations have encountered the need to invoke the Rules
protection.69 In rejecting Petitioners strait-jacket interpretation of Section 74.1204(d), we meet our 
statutory mandate to encourage the larger and more effective use of radio in the public interest.70 We 
thus will continue to exercise the flexibility conferred by the Translator Order and direct the staff to 
authorize translator stations when doing so will not compromise the rights of full-service stations against 
actual translator interference.  We are therefore denying Petitioners reconsideration petitions.
V. ORDERING CLAUSES
23. Accordingly, IT IS ORDERED that the Petitions for Reconsideration filed by National 
Public Radio and San Bernardino Community College District ARE DENIED.  IT IS FURTHER 
ORDERED that the Comments of the National Association of Broadcasters and the Comments of the 
North Carolina Association of Broadcasters ARE DISMISSED as unauthorized pleadings. 
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
  
66  See 47 C.F.R.  73.213(a); Grandfathered Short-Spaced FM Order, 12 FCC Rcd at 11843, supra n.15. See also, 
e.g., State of Florida, Order, 22 FCC Rcd 1782, 1784 (PSHSB, 2007).  See also 47 C.F.R.  22.657, 22.970, 
73.183, and 80.467; Third Periodic Review of the Commissions Rules and Policies Affecting the Conversion to 
Digital Television, Notice of Proposed Rulemaking, 22 FCC Rcd 9478, 9520, para. 102 (2007).  (Applicants for 
analog TV translator and low power TV ("LPTV") stations must propose facilities that do not exceed specified 
threshold U/D ratios at a DTV station's noise-limited contour or at all points within the noise-limited area in the case 
of adjacent channel stations proposing to locate inside the DTV noise-limited contour.).  
67 See Educational Media Foundation, 19 FCC Rcd at 5845, supra n.2. 
68 Interfering translators must discontinue operation within three minutes following notification by the Commission 
that actual interference is occurring.  See 47 C.F.R.  74.1203(e).  
69 In instances in which actual interference has occurred, the Media Bureau has cancelled FM translator 
authorizations.  See Creation of a Low Power Radio Service, Second Order on Reconsideration and Further Notice 
of Proposed Rulemaking, 20 FCC Rcd 6763, 6779 (2005), Erratum, 20 FCC Rcd 8717 (2005).
70 47 U.S.C.  303(g).