9 FCC Red No. 10 Federal Communications Commission Record FCC 94-94 , Lindsay was required to provide protection to the Before the NRAO facility at Green Bank at an interference level not Federal Communications Commission to exceed 1 x 10 to the -17 watts per meter squared, even Washington, D.C. 20554 though its transmitter site was outside of the "Quiet Zone."2 Achernar Broadcasting Company, 5 F.C.C. Red 962. 963 (ALJ 1990), rev'd, 5 F.C.C. Red 6309 (Rev. Bd. 1990), In re rev'd, 6 F.C.C. Red 5393 (1991). recon. denied, 1 F.C.C. Red 1778 (1992). appeal pending sub nom., Lindsay Televi License Renewal Applications of sion, Inc. v. FCC, No. 92-1149 (D.C. Cir. filed April 16, 1992). The level of interference caused by Lindsay to the Certain Broadcast Stations NRAO became an issue because a competing applicant, Licensed to Communities in Achernar Broadcasting Company (Achernar), submitted Maryland, Virginia. , engineering evidence indicating that the power density lev and the District of Columbia el of Lindsay©s signal would exceed the NRAO limits by a multiplication factor of 20,000. Achernar, 5 F.C.C. Red at 963. The NRAO, in the hearing on remand from the MEMORANDUM OPINION AND ORDER Review Board, agreed with Achernar©s calculations and concluded for the first time that the proposed Lindsay Adopted: April 19, 1994; Released: May 11, 1994 facility, as well as the proposed facility of Achernar located inside the Quiet Zone, would cause harmful interference By the Commission: to NRAO activities. Id. The Commission ultimately denied the applications of both Lindsay and Achernar. finding that they were not in the public interest, because the interfer 1. The Commission has before it for consideration an ence to the NRAO caused by either television facility application for review of an action by the Chief. Video would outweigh the benefit of a new television service. Services Division. License Renewal Applications of Certain Achernar, 6 F.C.C. Red at 5396. Broadcast Stations Licensed to Communities in Maryland, Virginia, West Virginia, and the District of Columbia 3. In its informal objection to the renewal applications. (Renewal Order), 1 F.C.C. Red 6284 (1992), which denied Lindsay asserted, referring to the NRAO power density the identical informal objections filed by Lindsay Televi level for Channel 64 in Charlottesville, that "this exceed sion, Inc. (Lindsay) against the 1991 renewal applications ingly high level of protection has got to be violated" by the of 47 television stations licensed to communities in Mary 47 renewal applicants on various channels transmitting land, Virginia, West Virginia and the District of from areas bordering the Quiet Zone. Yet, the NRAO did Columbia. The licensees of 11 of the 47 stations filed not object to any of the renewal applicants© facilities. Nor oppositions to Lindsay©s application for review. did Lindsay submit any engineering evidence to support its allegations. Indeed, Lindsay©s only support for this conclu sion was testimony given during its own comparative hear BACKGROUND ing by the associate director for the NRAO, who stated that the NRAO has sustained an unspecified level of broadcast 2. Lindsay argued in the proceeding below that before station interference from a station as far south as Florida the staff could grant the subject renewal applications, each and a station as far north as Pennsylvania. Achernar, 5 of the licensees should demonstrate that its television op F.C.C. Red at 966-67. Moreover. Lindsay argued that the eration caused no harmful interference to the activities of holding of Melody Music, Inc. v. FCC, 345 F.2d 730 (D.C. the National Radio Astronomy Observatory (NRAO) at Cir. 1965). mandates that before the Commission could Green Bank. West Virginia. This showing was required, determine that grant of the renewal applications was in the according to Lindsay, because in its own comparative pro public interest, the "similarly situated" renewal applicants ceeding for a new station on Channel 64 in Charlottesville.

1 The stations in Maryland are: WBAL-TV, Channel 11. Bal Channel 13, Hampton; WVFT, Channel 27, Roanoke; WVIR- timore; WBFF, Channel 45. Baltimore; WBOC-TV, Channel 16, TV, Channel 29, Charlottesville; WWBT, Channel 12, Rich Salisbury; WHAG-TV, Channel 25, Hagerstown; WHSW, Chan mond; and WZXK, Channel 65, Ashland. nel 24, Baltimore; WJAL. Channel 68, Hagerstown: WJZ-TV, Channel 13. Baltimore; WMAR-TV, Channel 2, Baltimore; The stations in West Virginia are: WBOY-TV, Channel 12, WMDT, Channel 47, Salisbury; and WNUV-TV, Channel 54. Clarksburg; WCHS-TV, Channel 8, Charleston; WDTV, Chan Baltimore. nel 5, Weston; WLYJ. Channel 46, Clarksburg; WQAY-TV. The stations in Virginia are: WAVY-TV, Channel 10. Ports Channel 4, Oak Hill: WOWK-TV, Channel 13, Huntington; mouth; WCYB-TV, Channel 5. Bristol; WDBJ, Channel 7, Roa- WSAZ-TV, Channel 3, Huntington; WTAP-TV. Channel 15, noke; WEFC, Channel 38. Roanoke; WONT, Channel 27, Parkersburg; WTRF-TV, Channel 7. Wheeling; WVAH-TV, Portsmouth; WHSV-TV. Channel 3, Harrisonburg; WJCB, Channel 11, Charleston; and WVVA, Channel 6, Bluefield. Channel 49, Norfolk; WJPR. Channel 21. Lynchburg; WRLH- The stations in the District of Columbia are: WDCA-TV. Chan TV, Channel 35, Richmond; WSET-TV. Channel 13, Lynch nel 20; WFTY. Channel 50; WJLA-TV, Channel 7; WRC-TV. burg; WSLS-TV, Channel 10, Roanoke; WTKK. Channel 66, Channel 4; WTTG. Channel 5; and WUSA, Channel 9. Manassas; WTKR-TV, Channel 3, Norfolk: WTVR-TV, Channel © The National Radio Quiet Zone is a fixed 13.000-square mile 6, Richmond: WTVZ-TV, Channel 33, Norfolk; WVEC-TV, area of Virginia and West Virginia surrounding the NRAO at Green Bank, West Virginia. The area was established by the Commission in 1958 to protect the activities of the NRAO from harmful interference.

2143 FCC 94-94 Federal Communications Commission Record 9 FCC Red No. 10 must demonstrate, as was required of Lindsay, that their NRAO objected to Lindsay©s application either, until the operations did not cause harmful interference to the Review Board remanded the ALJ©s Initial Decision to de NRAO. termine whether either Achernar©s facility or Lindsay©s 4. The staff denied Lindsay©s informal objections,3 noting facility, or both, would interfere with NRAO activities. that the failure to submit engineering evidence to support Achernar, 5 F.C.C. Red at 963. its allegations regarding the stations© interference to the 6. Moreover, Lindsay maintains that the staff©s dismissal NRAO did not meet the burden of pleading required of of Lindsay©s allegations as "general" and "conclusory" is even an informal objector. Renewal Order, 7 F.C.C. Red at unfounded in light of the specified level of interference 6285. And, in the absence of an objection by the NRAO, which the Commission found excessive in Lindsay©s own the staff determined that the broadcast operations of the case. Also in the record, Lindsay contends, is NRAO testi renewal applicants co-existed with the NRAO©s radio as mony in the comparative proceeding that radio astronomy tronomy activities without the detrimental effect which activities at Green Bank have sustained interference from would have been created by Lindsay©s facility. As to Lind one station as far south as Florida and one station as far say©s Melody Music contention, the staff rejected that case©s north as Pennsylvania. Id. at 966-67. Consequently, Lindsay applicability to the proceeding, finding that Lindsay, in its states, its allegations that a harmful level of interference comparative proceeding for a new station on Channel 64 was likely to be caused by the renewal applicants leaves for in Charlottesville, and the renewal applicants were not the Commission the task of "simple calculation to see who similarly situated for two primary reasons. First, the evi is right and who is wrong." According to Lindsay, the dence submitted against Lindsay in its comparative pro Commission has available in license files all of the in ceeding, specific and persuasive engineering data showing formation needed to compute the possible interference to Lindsay©s potential interference to the NRAO, and that the NRAO created by the 47 renewal applicants. Thus. submitted against the renewal applicants, conclusory and Lindsay argues, the staff©s denial of its informal objections conjectural statements, were deemed by the staff as "vastly should be reversed. dissimilar." Id. Second, the staff noted that the NRAO had not objected to any of the renewal applicants as it had to Lindsay©s application, whose potential interference to the DISCUSSION NRAO had been determined by conditions specific to 7. At the outset, we reiterate our standards with regard to Lindsay©s frequency assignment, transmitter location, an the NRAO in order to rectify Lindsay©s mistaken char tenna height, , and power input to acterization of our policy that all applicants for a new the NRAO antennas. W.4 station, as well as for renewal, are required to make a showing of noninterference to radio astronomy activities. Our objective for the past 35 years has been to provide APPLICATION FOR REVIEW radio astronomy activities with "maximum practicable pro 5. Lindsay again contends, in essence, that in its own tection" without unduly disrupting existing radio services. comparative proceeding the Commission created a new Interference Protection to Frequencies Utilized for Radio As policy regarding the NRAO that should now be applied to tronomy, 17 R.R. 1738, 1739 (1958). Section 73.1030 re the renewal applicants. That policy, Lindsay argues, estab flects this concern in that it requires an applicant seeking lished the requirement that the Commission consider possi authority to construct a new broadcast station or authority ble interference to the NRAO as a factor affecting the basic to make changes in the frequency, power, antenna height, technical qualifications of television applicants. Having or antenna directivity of an existing station located within instituted this new standard. Lindsay asserts, the Commis the Quiet Zone to notify the NRAO in writing of its sion must apply it to all similarly situated applicants. And. proposal simultaneously with the filing of its application according to Lindsay. the staff©s decision "highlights" the with the Commission. If the NRAO objects to the proposed similarities between its proceeding and that of the renewal operation during the subsequent 20-day comment period, applicants by noting that the NRAO had never objected to the Commission "will consider all aspects of the problem the continued operation of any existing station: nor had the and take whatever action is deemed appropriate." 47

* Because the staff had already granted the renewal applica review, on October 26, 1992, six applications, those of WDCA- tions of 29 of the 47 television stations prior to receipt of the TV. WJLA-TV, WMAR-TV, WRC-TV, WTTG and WUSA, re informal objections, it d©etermined that Lindsay©s objections to mained pending for reasons unrelated to this proceeding. Since those stations© applications were not timely filed. Renewal Or that time, impediments to the renewal for WDCA-TV and der. 1 F.C.C. Red at 6284. Notwithstanding the lateness of those WTTG have been resolved and their applications have been filings, the staff considered the objections as informal requests granted, on October 18, 1993 and December 10, 1993, respec for reconsideration of the grant of those 29 renewal applications. tively. The renewal application of WMAR-TV was designated Id. With regard to the remaining 18 renewal applications, the for comparative hearing on March 29, 1993. staff accepted the informal objections as timely filed pursuant to 4 The staff also noted, citing the Commission©s decision in Section 73.3587 of the Commission©s Rules, which provides that Achernar, 1 F.C.C. Red at 1778, that Lindsay©s application was any party may file an informal objection prior to Commission denied in the comparative proceeding not because of the poten action on an application. Id. Those 18 stations were: WDCA-TV. tial interference to the NRAO, but because Lindsay failed to WEFC, WJCB, WJLA-TV. WJZ-TV, WLYJ. WMAR-TV, persuade the Commission that granting its application would WNUV-TV. WRC-TV, WRLH-TV. WTKK, WTKR-TV, WTRF- serve the public interest despite the detrimental effect grant of TV. WTTG, WUSA, WVAH-TV, WVFT, and WZXK. Whether that application would have on Quiet Zone activities. Accord considered as informal objections or as informal requests for ingly, the staff determined that because Lindsay had failed to reconsideration, the staff denied Lindsay©s 47 informal objec make a sufficient threshold showing of interference by the tions. Id. at 628ft. Thereafter, in September 1992, the staff grant renewal applicants to the NRAO, it was not necessary to request ed the renewal applications of 12 of the 18 remaining of those applicants, nor to balance, any offsetting public interest applications and. as of the filing of Lindsay©s application for factors, as required of Lindsay in its comparative proceeding.

2144 9 FCC Red No. 10 Federal Communications Commission Record FCC 94-94 C.F.R. §73.1030(a). This notification requirement indicates Florida and a station as far north as Pennsylvania. that the Commission believes that the threat of interference Achernar, 5 F.C.C. Red at 966-67. As the staff noted, inter to the NRAO from new and modified stations within the ference limits established by the NRAO are unique to Quiet Zone "is of such pressing concern as to warrant every broadcast station, calculated by considering demon imposition of a special notification requirement that might strable receiver sensitivities and standards for antenna be unduly burdensome if imposed beyond the Zone." sidelobe responses, the proximity of the transmitter©s radio Achernar, 6 F.C.C. Red at 5394. However, although an frequency to a protected radio astronomy band, and exist applicant for a broadcast operation located outside of the ing interference conditions over which the Quiet Zone has Quiet Zone is not subject to the notification requirement no control, such as the radiation propagated into the Quiet of Section 73.1030, it may be required to make a showing Zone by the ionosphere. Renewal Order, 7 F.C.C. Red at of noninterference or offsetting public interest factors only 6285 n.4 (citing Achernar, 3 F.C.C. Red 5421. 5427 (ALJ when a prima facie case of interference has been made 1988)). Consequently, testimony by the NRAO©s associate based upon the objection of the NRAO or of "someone director with regard to unspecified stations in Florida and who believes that the public interest would be disserved" Pennsylvania does not satisfy the requirements that Lind by a facility outside the Zone. Id. say©s allegations be "specific" and supported by an affidavit 8. Thus, the Commission does not seek sua sponte to from a person with personal knowledge of the facts. More determine whether broadcast interference to NRAO facili over, Lindsay©s conclusory allegation that the 47 renewal ties will occur. Rather, we are apprised of such potential applicants will likely cause interference to the NRAO fa interference upon the objection by the NRAO against a cility, without specific supporting engineering evidence, broadcast facility within the Quiet Zone, pursuant to Sec does not establish a prima facie showing that grant of the tion 73.103()(a), and upon the objection by either the applications would not be in the public interest. In the NRAO or another party against a facility outside the Zone, absence of such a showing, therefore, the renewal ap pursuant to the rules for a petition to deny or for an plicants are not obligated to submit engineering or other informal objection. Accordingly, any such petition to deny information to counter Lindsay©s unsupported allegations. or informal objection, see Area Christian Television, Inc., 60 10. Now, in its application for review, Lindsay attempts R.R. 2d 862. 864 (1986). must meet the threshold require to shift the evidentiary burden to the Commission, which, ments of Section 309(d) of the Act.5 To begin with, allega Lindsay contends, should employ its staff and resources to tions must be specific, not those capable of supporting collect data from each of the 47 station files at the Com more than one plausible conclusion. See Arnold L. Chase, mission, where "most" of the necessary information is 5 F.C.C. Red 1642. 1645 (1990). Additionally, the allega located, compute their respective power density limits uti tions of fact, except for those we can officially notice, must lizing the NRAO formula, and determine whether Lind be supported by an affidavit from a person with personal say©s speculative allegations are right or wrong. As knowledge of those facts. And. allegations of "ultimate, discussed above, the mechanism for ensuring protection of conclusory facts or more general allegations based on in NRAO activities from interference created by facilities lo formation and belief" are inadequate. Bilingual Bicultural cated outside the Quiet Zone is triggered by a prima facie Coalition v. FCC, 595 F.2d 621. 629 (D.C. Cir. 1978) showing by the NRAO or a party filing a petition to deny (quoting S. Rep. No. 630. 86th Cong. 1st Sess. 3 (1959)). If or informal objection. In this regard, Lindsay has not car the petitioner successfully meets these basic pleading re ried its burden as an objector, nor has it demonstrated in quirements, the Commission will determine whether the this case that the Commission©s initial reliance on the petition alleges facts that, if true, establish a prima facie pleadings of outside parties where stations outside the Qui case that a grant of the application would not serve the et Zone are involved is misplaced. Lindsay©s claim that it is public interest. If so, the burden is then on the applicant to "a single applicant who has already undertaken extraor persuade the Commission that grant of its application dinary obligations and costs in this matter" is no justifica would outweigh the concomitant detrimental effects to the tion for abandoning its burden of pleading. This is not the NRAO. Achernar, 6 F.C.C. Red at 5395. Any substantial type of case in which exceptions to the requirement of and material questions of fact are to be resolved in a specific pleadings are made, because the data, as Lindsay hearing. Finally, in making our public interest determina concedes, is clearly not wholly within the knowledge of the tion, whether the NRAO objects to the facility at any stage renewal applicants. See, e.g., United Telephone Co. of Ohio, of the proceeding will be considered "in light of all rel 21 F.C.C. 2d 417, 421 (1970). Moreover, while, as Lindsay evant facts and circumstances." Id. asserts, the Commission is the agency of expertise and 9. In this case. Lindsay merely alleged in its informal experience in matters regarding the radio spectrum, we are objection before the staff that "a harmful level of interfer not obligated to assume Lindsay©s burden as objector. ence was likely to be caused by the renewal applicants." In 11. As to Lindsay©s invocation of Melody Music in sup support of this conjectural and conclusory allegation. Lind port of its assertion that the 47 renewal applicants are say proffered no engineering evidence. Instead, it relied "similarly situated" to Lindsay and must, therefore, also upon testimony given during Lindsay©s earlier comparative demonstrate that their operations do not cause harmful hearing by the associate director for the NRAO. who stated interference to the NRAO. we concur with the staffs con that the NRAO has sustained an unspecified level of broad clusion that no such similarities exist. Lindsay©s attempt at cast station interference from a station as far south as this stage to establish a basis of similarity between its

5 Section 3()9(d)(l) states, in pertinent part: "The petition shall contain specific allegations of fact sufficient to show that the petitioner is a party in interest and that a grant of the applica tion would be prima facie inconsistent with (serving the public interest, convenience, and necessity)."

2145 FCC 94-94 Federal Communications Commission Record 9 FCC Red No. 10 situation and that of the renewal applicants by noting that the NRAO did not object initially in its own proceeding nor in those of the renewal applicants is without merit. The submission by the competing applicant in Lindsay©s comparative proceeding of specific and persuasive engi neering evidence demonstrating that Lindsay©s proposed facility on Channel 64 in Charlottesville would create in terference in the Quiet Zone that would exceed the NRAO©s limits by a multiplication factor of 20.000 was in itself a sufficient predicate for our request that Lindsay demonstrate offsetting public interest factors. Here, neither Lindsay nor any other party has presented persuasive en gineering evidence correlative to that presented against Lindsay in its proceeding.6 12. For the reasons stated above, we find that Lindsay Television, Inc. has failed to set forth specific facts which, if true, would establish that a grant of the renewal applica tions for the 47 television stations noted above would be prima facie inconsistent with the public interest, conve nience and necessity. See, e.g., Astroline Communications Co. v. FCC, 857 F.2d 1556 (D.C. Cir. 1988). 13. Accordingly, IT IS ORDERED That the application for review filed by Lindsay Television, Inc. against the license renewal applications of 47 television stations located in Maryland, Virginia. West Virginia and the District of Columbia IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

William F. Caton Acting Secretary

6 In connection with Lindsay©s Melody Music argument, we accorded the two types of applicants by requiring notification to note that Lindsay and the renewal applicants are not similarly the NRAO by only applicants for new and modified facilities. situated in other respects as well. Lindsay was participating in a Moreover, it appears that the NRAO has acceded to this policy, comparative hearing for a new station while the renewal ap because it has never, to our knowledge, objected to interference plicants seek to renew their licenses for existing stations. Sec from an existing station. Achernar, ft F.C.C. Red at 5395, and it tion 307(c) of the Communications Act, as amended, recognizes does not object to any of the renewal applications before us, as that the Commission may evaluate existing licensees on a some it did to Lindsay©s application for a new station. However, in what different basis from new applicants. See National Citizens the event a prima facie showing of interference were submitted Committee for Broadcasting, 436 U.S. 775, 810-11 (1978). The against a renewal applicant, we would consider the existing Commission©s radio astronomy policy, set forth in Section status of a station as a crucial factor in our public interest 73.1030, also acknowledges that differential treatment may be balance.

2146