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 Federal  Communications  Commission  Washington,  D.  C.  20554 
 December  1,  2005  DA  05-  3090 
 In  Reply  Refer  to:  1800B3-  ALV 


 Morton  Cochran  County  Educational  Foundation  c/  o  A.  Wray  Fitch,  Esq. 
 Gammon  &  Grange,  P.  C.  8280  Greensboro  Drive 
 Seventh  Floor  McLean,  VA  22102-  3807 


 Patrick  J.  Vaughn,  Esq.  American  Family  Association 
 P.  O.  Drawer  2440  Tupelo,  MS  38803 


 In  Re:  NEW  (NCE  FM),  Morton,  TX  Facility  ID  No.  84763 
 BPED-  19961206ME 
 NEW  (NCE  FM),  Levelland,  TX  Facility  ID  No.  84185 
 BPED-  19970501MZ 
 Applications  for  NCE  FM  Construction  Permits 
 Group  No.  970512 
 Dear  Counsel: 
 We  have  before  us  Group  970512    two  mutually  exclusive  applications  for  permits  to  construct  new  noncommercial  educational  (  NCE)  FM  stations  serving  different  communities.  In  such  situations, 
 the  rules  require  the  Commission  to  make  a  threshold  determination  as  to  whether  grant  of  any  of  the  applications  would  further  the  fair,  efficient,  and  equitable  distribution  of  radio  service  among 
 communities.  1  For  the  reasons  below,  we  determine  that  Morton  Cochran  County  Educational  Foundation  (  MCCEF)  is  entitled  to  a  decisive  Section  307(  b)  preference. 


 An  NCE  FM  applicant  is  eligible  to  receive  a  Section  307(  b)  preference  if  it  would  provide  a  first  or  second  reserved  channel  NCE  aural  service  (in  the  aggregate)  to  at  least  ten  percent  of  the  population, 


 1  See  47  U.  S.  C.    307(  b);  47  C.  F.  R.    73.  7002(  a). 
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 provided  that  this  constitutes  at  least  2,000  people,  within  the  proposed  stations  60  dBu  contour.  2  If  more  than  one  applicant  in  a  mutually  exclusive  group  qualifies  for  a  preference,  we  compare  first  service 
 population  coverage  totals.  3  An  applicant  will  receive  a  dispositive  fair  distribution  preference  by  proposing  to  serve  at  least  5,000  more  potential  listeners  than  the  next  highest  applicants  first  service 
 total.  4  If  no  applicant  is  entitled  to  a  first  service  preference,  we  will  consider  combined  first  and  second  service  population  totals  and  apply  the  same  5,000  listener  threshold. 


 In  the  present  group,  MCCEF  would  serve  Morton,  Texas,  and  American  Family  Association  (  AFA)  would  serve  Levelland,  Texas.  MCCEF  is  the  only  applicant  to  claim  that  it  would  provide  a 
 new  first  or  second  NCE  service  to  10  percent  of  the  population,  and  to  at  least  2,000  people,  within  its  service  area,  and  therefore,  that  it  is  eligible  for  a  fair  distribution  preference.  5  Based  on  MCCEFs 
 submissions  and  calculations,  it  appears  that  MCCEF  qualifies  for  a  preference.  Accordingly,  pursuant  to  Section  73.7004  of  the  Commissions  rules,  we  identify  MCCEF  as  the  tentative  selectee.  Group  970512 
 thus  will  not  proceed  to  a  point  hearing.  6 
 Accordingly,  it  is  ordered  that  the  application  of  Morton  Cochran  County  Educational  Foundation  is  accepted  for  filing.  It  is  also  ordered  that  Morton  Cochran  County  Educational  Foundation  is 
 TENTATIVELY  SELECTED  to  be  awarded  a  construction  permit  for  a  new  NCE  FM  station  in  Morton,  Texas.  Petitions  to  deny  the  tentative  selectee  are  due  within  thirty  (30)  days  following  the  issuance  of  a 
 subsequently  issued  public  notice  announcing  the  acceptance  and  tentative  selection  of  this  application.  7 


 2  See  47  C.  F.  R.    73.  7002(  b).  With  respect  to  population  information,  applicants  were  to  use  the  2000  Census  data, 
 if  available  by  June  4,  2001.  See  Supplements  and  Settlements  to  Pending  Closed  Groups  of  Noncommercial  Educational  Broadcast  Applications  Due  by  June  4,  2001,  Public  Notice,  16  FCC  Rcd  6893  (MB  Mar.  22,  2001). 


 Applicants  were  also  to  base  their  fair  distribution  analysis  on  the  snap  shot  date  of  June  4,  2001,  which  is  applicable  unless  the  applicant  subsequently  makes  engineering  changes  that  would  diminish  its  comparative 
 position.  Id.  In  this  case,  neither  of  the  applicants  has  made  such  engineering  changes.  In  addition,  each  applicant  timely  supplemented  its  application  with  a  Section  307(  b)  showing;  each  purports  to  be  based  on  2000  Census  data 
 and  a  snap  shot  date  of  June  4,  2001.  3 
 See  47  C.  F.  R.    73.  7002(  b).  See  also  Deadline  for  NCE  Settlements  and  Supplements  Extended  to  July  19,  2001;  Date  for  Calculating  Comparative  Qualifications  Remains  June  4,  2001,  Public  Notice,  16  FCC  Rcd  10892,  10893 


 (MB  May  24,  2001).  4 
 Id.  5 
 MCCEFs  60  dBu  contour  encompasses  297,  571  people.  MCCEFs  claimed  aggregated  first  and  second  service  is  32,  547  people. 


 6  See  47  C.  F.  R.    73.  7002(  b).  The  Media  Bureau  has  delegated  authority  to  make  307(  b)  determinations  in  NCE 
 cases.  See  Reexamination  of  the  Comparative  Standards  for  Noncommercial  Educational  Applicants,  15  FCC  Rcd  7386  (2000),  partially  reversed  on  other  grounds,  NPR  v.  FCC,  254  F.  3d  226  (DC  Cir.  2001)  (  NCE  Order).  See 


 also  47  C.  F.  R.    0.283.  In  the  NCE  Order,  the  Commission  concluded  that  [  i]  n  examining  the  fair  distribution  issues,  we  will  use  the  general  process  set  forth  in  the  Section  of  our  Competitive  Bidding  proceeding  that  addressed 
 Section  307(  b)  considerations  for  AM  stations.  See  NCE  Order,  15  FCC  Rcd  at  7397  (citing  Comparative  Bidding  for  Commercial  Broadcasting  and  Instructional  Television  Fixed  Services,  13  FCC  Rcd  15920  (1998)  (delegating 
 authority  to  the  staff  to  conduct  Section  307(  b)  analyses  with  respect  to  AM  applications  prior  to  conducting  auctions  of  competing  applications)).  In  contrast,  the  NCE  Order  noted  that  the  point  system  analysis  conducted 
 when  Section  307(  b)  is  not  determinative  is  considered  a  simplified  hearing  for  purposes  of  47  U.  S.  C.    155(  c)(  1).  See  NCE  Order,  15  FCC  Rcd  at  7420. 
 7  See  47  C.  F.  R.    73.  7004.  If  any  applicant  previously  raised  issues  against  the  tentative  selectee,  it  must  refile  its 
 objections  within  this  thirty  (30)  day  period. 
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 If,  after  the  petition  to  deny  period  has  run,  there  is  no  substantial  and  material  question  concerning  the  grantability  of  the  tentative  selectees  application,  we  will,  by  public  notice,  dismiss  the 
 mutually  exclusive  application  of  American  Family  Association  (File  No.  BPED-  19970501MZ)  and  grant  the  application  of  Morton  Cochran  County  Educational  Foundation  (File  No.  BPED-  19961206ME). 


 Sincerely, 
 Peter  H.  Doyle  Chief,  Audio  Division 
 Media  Bureau 
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