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Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 in Re Application of ) ) SSR COMMUNICATIONS, INC. ) Facilit

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Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 in Re Application of ) ) SSR COMMUNICATIONS, INC. ) Facilit Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In re Application of ) ) SSR COMMUNICATIONS, INC. ) Facility ID No. 77646 ) For a Construction Permit for the Modification of ) File No. 0000113427 Station WYAB(FM), Pocahontas, Mississippi ) To: Chief, Audio Division, Media Bureau INFORMAL OBJECTION iHM Licenses, LLC (“iHM”), licensee of FM station WFFX, 103.7 MHz, Hattiesburg, Mississippi, FCC Facility ID No. 54611, by its attorney and pursuant to Section 73.3587 of the Commission’s Rules, hereby submits this Informal Objection to the above-captioned application, as amended, File No. 0000113427 (the “Permit Application”) of SSR Communications, Inc. (“SSR”) for a construction permit for the modification of station WYAB(FM), 103.9 MHz, Pocahontas, Mississippi, FCC Facility ID No. 77646. 1/ The Permit Application seeks waivers which, if entertained, would pre-judge a pending notice of inquiry rulemaking proceeding. 2/ As a premature application anticipating Commission rule changes that may never occur, the Permit Application should be dismissed. 1/ The Permit Application was initially submitted on May 8, 2020, and was amended by SSR on May 26, 2020. 2/ See Notice of Inquiry, In the Matter of Proposals for a New FM Radio Broadcast Class C4 and to Modify the Requirements for Designating Short-Spaced Assignments, 33 FCC Rcd 5495 (2018) (“Class C4 Notice of Inquiry”). The Request for Waiver of the Commission’s Rules submitted by SSR with the Permit Application (the “Waiver Request”), is introduced as follows: Pursuant to Section 1.3 of the Commission’s Rules, Applicant hereby requests waivers of Sections 73.210(b)(1), 73.211(b)(1), and 73.215(a)(2), in order to accommodate the herein-described engineering modifications that, taken together, would mirror the technical facilities of a FM Class C4 authorization as proposed in a Petition for Rulemaking, filed by SSR Communications, Inc. on January 22, 2013 (RM-11727). This proposal was also the subject of a Commission Notice of Inquiry, FCC 18-69, released June 5, 2018. There are several rule waivers that would be necessary to grant the Permit Application; SSR states in the Waiver Request: First, Applicant asks the Commission to waive Section 73.210(b)(1) of its Rules, which addresses station classes. Because no allocation or spacing table with a “FM Class C4” entry has yet been formally defined, though such spacing standards were proposed within the context of RM-11727, Applicant cannot demonstrate that a fully-spaced “FM Class C4” allotment site can be shown to exist pursuant to Section 73.207. Applicant also respectfully requests herein a waiver of Section 73.211(b)(1), with regard to maximum limits. Applicant asks the Commission to restrict its proposed FM Class A authorization to a “FM Class C4” equivalent status, in that, Applicant may specify a facility with a primary service contour distance greater than 28 km, but less than or equal to 33 km. Applicant also asks for a waiver of Section 73.215(a)(2) to treat station WFFX 103.7 FM (Facility ID 54611) at Hattiesburg, Mississippi as if it were licensed with a Section 73.215 designation. As essentially acknowledged by SSR when it describes “[e]ach adjacent station now licensed pursuant to Section 73.207,” iHM station WFFX was authorized pursuant to Section 73.207 of the Commission’s Rules, not Section 73.215, and therefore, without an unprecedented (yet not requested) waiver of Section 73.207, WFFX must be afforded full distance spacing, not contour-based interference protection to its service area from WYAB. 2 By readily admitting that that the Permit Application facilities “would mirror the technical facilities of a FM Class C4 authorization as proposed in a Petition for Rulemaking, filed by SSR Communications, Inc. (“SSR”) on January 22, 2013 (RM-11727)” and that “[t]his proposal is also the subject of a Commission Notice of Inquiry, FCC 18-69, released June 5, 2018,” SSR makes clear that its Permit Application is anticipating rule changes that may never occur. For the Audio Division to entertain the myriad of waivers necessary for grant of the WYAB Permit Application, the Division would impermissibly prejudge the Notice of Inquiry proceeding. Thus, the Permit Application, which is a premature filing that presupposes rule changes that are not even tentatively proposed by the Commission, must be dismissed. As the Audio Division stated when denying a waiver of Section 73.215(b)(2)(ii) and dismissing a similarly jumping-the-gun application by SSR for WYAB in 2015: “Any change to the rule that affects the level or manner of protection of stations authorized under Section 73.207 must be made in the context of a notice and comment rulemaking proceeding….we cannot consider waiver requests that so directly affect the fundamental underpinnings of the rule section (like protection of the other station to some lesser standard, as SSR advocates).” 3/ As with the 2015 Application Dismissal, the 2020 Permit Application seeks action for one party via waivers of fundamental rules of general applicability. As explained in the 2015 Application Dismissal, “[t]he Communications Act does not require the Commission to grant applications favoring the narrow interest [of] one party.” 4/ As was the case for the 3/ See Letter from Dale Bickel, Senior Engineer, Audio Division, Media Bureau, to Matthew Wesolowski, at 4, File No. BMPH-20150309AFP, Station WYAB, Facility ID No. 77646 (Jun. 25, 2015) (the “2015 Application Dismissal”). 4/ 2015 Application Dismissal at 4. 3 2015 Application Dismissal, the Audio Division should deny SSR’s multiple rule waiver requests here, and the Permit Application should be dismissed. 5/ SSR’s repeated requests to short-circuit the Commission’s rulemaking process by submitting serial waiver requests due to its impatience with generally applicable current interference protection rules 6/ is wasting the resources of both the Commission and the licensees of the impacted Section 73.207-authorized stations. This practice should not be countenanced. Prompt dismissal of the Permit Application is warranted. 5/ Moreover, if the Commission were to consider granting the Permit Application, it would first need to issue Section 316 Orders to Show Cause to iHM as licensee of WFFX, as such action would result in the constructive modification of the WFFX license by modifying the area of interference protection. See 47 U.S.C. § 316(a)(1) (“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, or the provisions of this chapter or of any treaty ratified by the United States will be more fully complied with. 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 therefor, and shall be given reasonable opportunity, of at least thirty days, to protest such proposed order of modification; except that, where safety of life or property is involved, the Commission may by order provide, for a shorter period of notice.”); accord R&S Media, 19 FCC Rcd 6300, 6306-07 [¶¶19-20] (Med. Bur. 2004) (grant of modification application with waivers of Sections 73.215(a) and (e) rescinded to allow Section 316 notice to impacted station). 6/ Besides filing the waiver requests with the modification application for WYAB that was rejected by the Audio Division in the 2015 Application Dismissal, see supra note 3, based on notices filed with the Commission, SSR has lobbied on the behalf of – and appears to have prepared the waiver exhibit for – a strikingly similar application for equivalent Class C4 facilities for WRTM-FM, Sharon, Mississippi, FCC Facility ID No. 19864, File No. BPH-20180716AAC (the “WRTM-FM Application”). The iHM affiliate which is the licensee of Section 73.207- protected WNSL(FM), 100.3 MHz, Laurel, Mississippi, FCC Facility ID No. 16784, also was forced to expend resources objecting to the patently-defective WRTM-FM Application. 4 Respectfully submitted, iHM LICENSES, LLC By: Marissa G. Repp REPP LAW FIRM 1629 K Street, NW, Suite 300 Washington, DC 20006-1631 (202) 656-1619 [email protected] Its Attorney June 4, 2020 5 CERTIFICATE OF SERVICE I, Marissa G. Repp, do hereby certify that a copy of the foregoing Informal Objection is being sent via first-class, U.S. Mail, postage prepaid, and additionally as a courtesy by e-mail, this 4th day of June, 2020, to the following: Matthew K. Wesolowski Chief Executive Officer SSR Communications, Inc. 740 Highway 49 North Suite R Flora, MS 39071 and e-mail at [email protected] Licensee of WYAB(FM), Pocahontas, Mississippi Commander Communications Corp. P.O. Box 31235 Jackson, MS 39286-1235 Attention: Carl Haynes and e-mail at [email protected] Licensee of WRTM-FM, Sharon, Mississippi Marissa G. Repp .
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