10 FCC Red No. 13 Federal Communications Commission Record DA 95-1273

FAA would be required is 82 feet AGL - 147 feet AMSL. Before the WJCM©s assumed height of 340 feet AGL - 405 feet AMSL Federal Communications Commission is within the "notice" criteria of Part 77. SRN states that Washington, D.C. 20554 WJCM©s proposal would exceed Part 77.23(a)(2) by 140 feet AGL, its height in excess of 200 feet AGL less than 3 nautical miles from the Sebring Airport reference point. SRN also argues that a station cannot be built for Channel MM Docket No. 90-524 298A at Sebring that satisfies both Section 73.207 and Section 73.315 of the Commission©s Rules. Therefore, SRN In the Matter of opposes the allotment of Channel 298A to Sebring and requests the substitution of Channel 298C for Channel Amendment of Section 73.202(b), RM-7501 298C1 for Station WQBA(FM), Miami, Florida. Table of Allotments, RM-7631 3. WWRM in its comments argue that the proposed site for Channel 298A at Sebring does not meet mileage separa FM Broadcast Stations. tion requirements, assuming full use of the Commission©s (Sebring and Miami, Florida) 1 rounding-off methodology. WWRM contends that the pro posal is limited to one unique site which satisfies the spacing requirements of Section 73.207. This parcel lies REPORT AND ORDER approximately six miles to the southeast of Sebring, located (Proceeding Terminated) within 10,000 feet of the Sebring Air Terminal and is approximately one mile from an east-west runway at the Adopted: June 8,1995; Released: June 16, 1995 Sebring Air Terminal and is almost directly aligned with the Airport©s 4/22 runway. WWRM submits that the By the Chief, Allocations Branch: Sebring Airport Authority owns the only parcel in which a fully spaced facility may be located. WWRM states that 1. At the request of WJCM, Inc. ("WJCM"), the Com Sebring©s petition for rule making should be dismissed, mission has before it the Notice of Proposed Rule Making, 5 since there is no site which can satisfy both Sections 73.207 FCC Red 6579 (1990), proposing the allotment of Channel and 73.315(a) of the Commission©s Rules and Sections 298A to Sebring, Florida, as the community©s second local 77.23 and 77.25 of the Federal Aviation Administration FM service. WWRM. Inc., ("WWRM") licensee of Station ("FAA") Rules. Sections 77.23 and 77.25 of the FAA rules WWRM(FM), Channel 297C1, St. Petersburg, Florida, filed limit towers to a height of 150 feet above ground level comments. WJCM filed comments restating its intention to within a 10.000 foot radius of the Sebring Air Terminal©s apply for Channel 298A or any channel allotted to Sebring. north-south, non-utility or non-visual runway. WWRM Spanish Radio Network ("SRN"), licensee of Station submits that if the tower for Channel 298A at Sebring is WQBA(FM), Channel 298C1, Miami, Florida, filed com reduced to 150 feet above ground level to satisfy 14 C.F.R. ments and counterproposal requesting the substitution of Sections 77.23 and 77.25, then the proposed station would Channel 298C for Channel 298C1 at Miami, Florida, and provide city grade coverage to only one-third of the city of the modification of Station WQBA(FM)©s license to specify Sebring, in violation of Section 73.315(a) of the Rules. the higher class channel.2 WJCM filed reply comments. In WWRM states that WJCM must show that there is a "rea response to the counterproposal SRN and WJCM filed sonable basis" to conclude that FAA approval of a maxi comments and supplemental comments. After the record mum Class A facility can be obtained, citing Blackspear, closed WWRM filed a request for leave to file further reply Georgia, 2 FCC Red 3323 (1987). WWRM argues the fact comments and WJCM filed an opposition to WWRM©s that the site is owned by the local airport authority raises request for leave to file further reply comments.3 substantial doubts as to the availability of the site. WWRM 2. SRN in its counterproposal states that the allotment of also contends that under these circumstances "the Commis Channel 298A to Sebring will limit the possibility of Sta sion requires the proponent to provide an engineering tion WQBA(FM) operating with full Class C status. SRN study showing that the allotment can indeed be made in argues that WJCM©s reference point is located close to the conformance with the technical rules." See Creswell, Or Sebring Regional Airport, which is a public use airport egon, 3 FCC Red 4608 (1988). In addition, the Commis protected by Part 77 of the Federal Aviation Regulations. sion©s rules independently impose an affirmative obligation SRN contends that a Class A 6 kilowatt station is not on the petitioner to identify at the rule making stage more possible on Channel 298A, because an antenna tower tall than a "theoretical" site which is fully spaced. Where, as enough for a full Class A 6 kilowatt facility would intrude here, the allotment involves a site restriction. Section into protected airspace, and there would be possible radio 73.208(a)(2) calls for the submission of a "showing indicat interference to the aeronautical radio band. SRN submitted ing the availability of a suitable site." WWRM claims that an engineering analysis which determines the distance of WJCM has provided no such showing and, its proposal the proposed tower from the nearest point of the closest should be dismissed, citing Bay Shore, New York, 20 RR 2d runway which disclosed th.it the site is located approxi 1558 (1970). mately 8,200 feet from the closest point of Runway 36. At the distance specified, the allowable height before notice to

1 The community of Miami, Florida, has been added to the 3 Although these comments were filed after the pleading cycle caption. ended in this proceeding, we will consider them because they 2 Public Notice of the counterproposal was given February 15, provide a more complete record for resolution of this proceed 1991, Report No. 1838, RM-7631. ing. See Section 1.425 of the Commission©s Rules.

6577 DA 95-1273 Federal Communications Commission Record 10 FCC Red No. 13

4. In reply comments WJCM states that it has no reason 6. We have examined WWRM©s engineering statement to believe that the site proposed would be unavailable. and a staff engineering analysis confirms that the proposed Although located in the vicinity of the Sebring airport, use site in the Notice requested by WJCM would be technically of the site is not precluded by its location. The north-south infeasible for the allotment of Channel 298A to Sebring, runway of the Sebring airport is presently inactive, and the Florida. The allotment of Channel 298A to Sebring at the east-west runway has been dedicated to the Sebring Interna proposed coordinates is apparently the only site available, tional Auto Race held annually. WJCM states that the and the tower would be located within 10,000 feet of the opponents have produced no credible evidence that the Airport Terminal. In addition, a staff engineering analysis proposed site would not be approved by the airport author confirms WWRM©s engineering statement, along with the ity. WJCM submits a copy of a statement attesting to a submission of an FAA report which shows that at the conversation with the manager of the Sebring Airport, Mr. proposed coordinates a tower could not be built any higher Ed Jordan. Mr. Jordan indicated no particular difficulty than 172 feet (52 meters), above ground level, and a facility with an application to use the site suggested by WJCM, of that height with an ERP of 6 Kw would provide city however, his opinion is not binding upon the FAA. WJCM grade coverage to only one-third of Sebring©s community, states that SRN©s counterproposal to upgrade Station which makes the allotment infeasible. It also appears that WQBA(FM) at Miami, Florida, is not mutually exclusive the local airport authority owns the only parcel of land with the allotment of Channel 298A to Sebring, Florida. available where a tower could be located to meet the Channel 298C can be allotted to Miami. Florida at coordi Commission©s minimum distance requirement. In an at nates 25-32-34 and 80-28-07, while still allotting Channel tempt to resolve the conflict we conducted a channel 298A to Sebring, Florida. WJCM contends that the objec search to determine if there is an alternate channel avail tions raised by the opponents in this proceeding are more able for allotment to Sebring. We find that there are no properly handled by the Commission upon the submission fully spaced alternate sites or channels available for Sebring of an application. The sole exception made by the Commis that would meet FAA approval, and provide city-grade sion has been in the case of sites specified in allotment coverage to Sebring. The underlying requirement for an proceedings that do not meet the spacing requirements of allotment is the reasonable expectation that a useable site is the rules, or will not put a city-grade signal over the available complying with the minimum spacing require principal community to be served. WJCM states that once ments. Although the Commission generally presumes in a channel is assigned by rule making, an applicant is free rule making proceedings that a technically feasible site is to choose any transmitter site, so long as it provides city- available, that presumption is rebuttable. See San Clemente, grade coverage in accordance with Section 73.315 of the California, 3 FCC Red 6728 (1988), appeal dismissed sub. Commission©s Rules. WJCM concedes that there is no oth nom. Mount Wilson FM Broadcasters, Inc. v. FCC, 884 F 2d er site adequately spaced other than that specified in the 1462 (D.C. Cir. 1989), also See San Clemente, California, 8 Notice, which complies with all Commission spacing and FCC Red (1993) released December 8, 1993. The actual city-coverage requirements. WJCM contends that the Com availability of a potential transmitter site complying with mission has paved the way in circumstances such as this the spacing requirements is a matter which can be raised in one for use of a site short-spaced but contour-protective of comments from all interested parties. In the event the issue other stations through use of a directional antenna, citing is raised, then we must make a determination on the Amendment of Part 73 of the Commission©s Rules to Permit reasonable likelihood that a site will be available. We will Short-Spaced FM Station Assignments by Using Directional not allot a channel where a properly spaced site is techni Antennas, 4 FCC Red 1681 (1989). cally infeasible. Here, information has been presented 5. In reply comments SRN argues that the alternate site which indicates that there are no satisfactory sites available and imposition of the site restriction WJCM has proposed that would meet FAA criteria and the Commission©s spac would substantially degrade WQBA(FM) :s coverage and ing requirement. We do not consider land within 10,000 therefore it cannot support WJCM©s suggested resolution. feet of an Airport Terminal to be an available site, as we SRN states that from the proposed site, station WQBA(FM) believe it doubtful that FAA approval would be granted for would provide a second commercial FM reception service a transmitter site so close to its terminal. Therefore, we will to an area approximately 1,580 square kilometers in south deny WJCM©s petition. eastern Collier County, Western Dade County and north 7. Based on the above information, we believe the public ern Monroe County. However, WJCM©s reference site interest would be served by substituting Channel 298C for would entail an actual loss of existing service to an area Channel 298C1 at Miami, Florida. Channel 298C can be with at least 1,400 square kilometers and 221.452 residents allotted to Miami, Florida, in compliance with the Com in northeastern Broward County and southern Palm Beach mission©s minimum distance separation requirements.4 with County. SRN states that for this reason WJCM©s proposed a site restriction of 5.8 kilometers (3.6 miles) west, in order site restriction is unacceptable. In addition. WJCM©s refer to avoid a short-spacing to Station WIRK(FM), Channel ence site is markedly less efficient due to the larger amount 300C1, West Palm Beach, Florida. As requested, we will of primary service extended over marine areas. SRN con also modify Station WQBA(FM)©s license to specify opera tends that operation at WJCM©s reference site would pro tion on Channel 298C. vide service to 8.4 percent less area and 239,329 fewer 8. Accordingly, pursuant to the authority found in Sec persons than SRN©s reference site. SRN notes that WJCM©s tions 4(i), 5(c)(l), 303(g) and (r) and 307(b) of the proposed allotment of Channel 298A would provide service Communications Act of 1934, as amended, and Sections to at least 203,329 fewer persons than WQBA(FM)©s 0.61, 0.204(b) and 0.283 of the Commission©s Rules, IT IS present Class Cl operation. ORDERED, That effective July 31, 1995, the FM Table of

4 The coordinates for Channel 298C at Miami are North Lati tude 25-47-42 and West Longitude 80-14-36.

6578 lOFCCRcdNo. 13 Federal Communications Commission Record DA 95-1273

Allotments, Section 73.202(b) of the Commission©s Rules. the FM Table of Allotments, Section 73.202(b) of the Com IS AMENDED for the community listed below, as follows: mission©s Rules and Regulations, as set forth in the Notice of Proposed Rule Making to which this Appendix is at City Channel No. tached. 2. Showings Required. Comments are invited on the pro Miami, Florida 226C. 243C, 247C, posal^) discussed in the Notice of Proposed Rule Making to 256C1, 268C1, 298C which this Appendix is attached. Proponent(s) will be ex pected to answer whatever questions are presented in initial 9. IT IS FURTHER ORDERED. That pursuant to Sec comments. The proponent of a proposed allotment is also tion 316(a) of the Communications Act of 1934, as amend expected to file comments even if it only resubmits or ed, the license of Station WQBA(FM), Miami, Florida, IS incorporates by reference its former pleadings. It should MODIFIED, to specify operation on Channel 298C in lieu also restate its present intention to apply for the channel if of Channel 298C1 at Miami. Florida, subject to the follow it is allotted and, if authorized, to build a station promptly. ing conditions: Failure to file may lead to denial of the request. 3. Cut-off Procedures. The following procedures will gov (a) Within 90 days of the effective date of this Order, ern the consideration of filings in this proceeding. the licensee shall submit to the Commission a minor change application for a construction permit (Form (a) Counterproposals advanced in this proceeding 301), specifying the new facility; itself will be considered if advanced in initial com (b) Upon grant of the construction permit, program ments, so that parties may comment on them in tests may be conducted in accordance with Section reply comments. They will not be considered if ad 73.1620; and vanced in reply comments. (See Section 1.420(d) of the Commission©s Rules.) (c) Nothing contained herein shall be construed to authorize a change in transmitter location or to avoid (b) With respect to petitions for rule making which the necessity of filing environmental assessment pur conflict with the proposal(s) in this Notice, they will suant to Section 1.1307 of the Commission©s Rules. be considered as comments in the proceeding, and Public Notice to this effect will be given as long as they are filed before the date for filing initial com 10. Pursuant to Commission Rule Section 1.1104(l)(k) ments herein. If they are filed later than that, they and (2)(k), any party seeking a change of community of will not be considered in connection with the de license of an FM or television allotment or an upgrade of cision in this docket. an existing FM allotment, if the request is granted, must submit a rule making fee when filing its application to (c) The filing of a counterproposal may lead the implement the change in community of license and/or Commission to allot a different channel than was upgrade. As a result of this proceeding, Spanish Radio requested for any of the communities involved. Network, licensee of Station WOBA(FM) is required to submit a rule making fee in addition to the fee required 4. Comments and Reply Comments; Service. Pursuant to for the application to effect the upgrade. applicable procedures set out in Sections 1.415 and 1.420 11. IT IS FURTHER ORDERED, That the petition for of the Commission©s Rules and Regulations, interested par rule making filed by WJCM, Inc. requesting the allotment ties may file comments and reply comments on or before of Channel 298A to Sebring. Florida (RM-7501) IS DE the dates set forth in the Notice of Proposed Rule Making to NIED. which this Appendix is attached. All submissions by parties 12. IT IS FURTHER ORDERED, That this proceeding to this proceeding or by persons acting on behalf of such IS TERMINATED. parties must be made in written comments, reply com ments, or other appropriate pleadings. Comments shall be 13. For further information concerning this proceeding, served on the petitioner by the person filing the comments. contact Nancy J. Walls, Mass Media Bureau, (202) Reply comments shall be served on the person(s) who filed 418-2180. comments to which the reply is directed. Such comments and reply comments shall be accompanied by a certificate FEDERAL COMMUNICATIONS COMMISSION of service. (See Section 1.420(a), (b) and (c) of the Com mission©s Rules.) Comments should be filed with the Sec retary, Federal Communications Commission, Washington, D.C. 20554. 5. Number of Copies. In accordance with the provisions John A. Karousos of Section 1.420 of the Commission©s Rules and Regula Chief, Allocations Branch tions, an original and four copies of all comments, reply Policy and Rules Division comments, pleadings, briefs, or other documents shall be Mass Media Bureau furnished the Commission. 6. Public Inspection of Filings. All filings made in this proceeding will be available for examination by interested APPENDIX parties during regular business hours in the Commission©s 1. Pursuant to authority found in Sections 4(i), 5(c)(l), Public Reference Room at its headquarters, 1919 M Street 303(g) and (r) and 307(b) of the Communications Act of N.W., Washington, D.C. 1934, as amended, and Sections 0.61 0.204(b) and 0.283 of the Commission©s Rules, IT IS PROPOSED TO AMEND

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