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Federal Communications Commission Record FCC 87-49 quired signal level of al least 70 dBu principal city Before the coverage to only 45% of Bay Shore. Thereafter. LIMBC Federal Communications Commission filed a supplemental request to add Channel 276A at Oak Washington, D.C. 20554 Beach, New York, as an alternative. LIMBC expressly stated that this pleading "supplements" the earlier plead­ ing and "requests as an alternative action the institution of a rule making proceeding 10 add Channel 276A at Oak MM Docket No. 84-293 Beach, New York." 4. The Notice of Proposed Rule Making, 49 FR 14541, In the Matter of pUblished April 12, 1984, specifically proposed Channel 276A for Oak Beach. In addition to outlining the history Amendment of Section 73.202(b) of this proceeding, the NOlice solicited comments on Table of Allotments whether Oak Beach has sufficient social. economic or cultural indicia to qualify as a "community" for allotment FM Broadcast Stations. RM-4611 purposes. In the Reporl and Order. SO FR 10768, pub­ (Oak Beach and Bay Shore, New York) lished March 18, 1985, the Mass Media Bureau, under delegaled authority determined that Oak Beach does not have characteristic indicia normally needed to justify the MEMORANDUM OPINION AND ORDER status of a "community" for allotment purposes. Never­ theless, we also noted that the underlying proposal for the Adopted: February 3, 1987 Released: February 27, 1987 use of Channel 276A for Bay Shore was both unique and meritorious. It would provide Bay Shore with a first local By the Commission: service while contributing to the efforts to restore and preserve the Fire Island Lighthouse. In the Report and 1. The Commission has before it for consideration the Order. we recognized that the predicted 70 dBu signal Memorandum Opillion and Order. released April 3. 1986 would encompass only 45% of Bay Shore. In this connec­ (Mimeo No. 3533), which denied peWions for reconsider­ tion. we referred to the fact that the area between the ation filed by Doubleday Broadcasting of New York. Inc.. Lighthouse and Bay Shore consists of water and the 70 former licensee of Station WAPP. Lake Success. New dBu can be expected. in actuality, to extend further and York. (Doubleday); and Long Island Radio Company, pos...ibly encompass Bay Shore. In any event, we noted licensee of Station WBAB-FM, Babylon, New York that in view of the height limitations imposed by the (WDAB), directed against the Reporl alld Order allotting National Park Service. a requesl for waiver, if necessary, FM Channel 276A to Bay Shore. New York. Doubleday would be appropriate for consideration at the application and WBAB have filed Applications for Review of the stage. Thereafter. by Memorandum Opinion and Order the Meniora1ldum Opinion a'ld Order.t staff denied the aforementioned petitions for reconsider­ ation filed by Doubleday and WBAB. BACKGROUND 2. The present proceeding is an outgrowth of two APPLICATIONS FOR REVIEW earlier proceedings involving the allotment of FM Chan­ 5. In support of the Applications for Review. nel 276A to Bay Shore. In 1Q70, the Commission. imer Doubleday and WBAB contend that the Channel 276A alia, allotted this channel to Bay Shore.3 However, upon allolment 10 Bay Shore (l) does not comply with the reconsideration and at the request of the United States minimum spacing requirements now set forth in Section Department of the Interior. we deleted this allotment. 73.207 of the Rules, (2) contravenes the Administrative That action was premised on the fact that the only site Procedure Act in that it was allotted without prior notice, area complying with Commission spacing requirements (3) derogates the principal city coverage requirement con­ was localed on Fire Island on land owned by the National tained in Seclion 73.315 of the Rules, (4) relies on the Park Service which would nol be available for a 300-foot fact that the Lighthouse would be restored, and (5) claims tower due to environmental considerations.4 Thereafter. that postponing a decision on the effect this facility will in 1982, we denied a proposal by Living Communica~ have on the Lighthouse contravenes the National Historic tions. Inc. to allot Channel 276A to Bay Shore due to the Preservation Act. After careful consideration of this mat­ unavailability of a site which would comply with the ter, we are of the view that the arguments advanced by spacing requirements.s Doubleday and WBAB do not warrant deleting the Chan~ 3. On September 21, 1983. Long Island Music Broad­ nel 276A allotment to Bay Shore. We will consider these casting Corporation ("LIMBe") filed a new petition to arguments seriatim. allot Channel '2.76A to Bay Shore, New York. In the petition. LlMBC specifically referred to the earlier pro­ ceedings involving Ihe allotment of Channel 276A to Bay MINIMUM SPACING REQUIREMENTS Shore and stated that "il. had now obtained a lease agree­ 6. The Channel 276A allotment to Bay Shore resull.. in ment with the National Park Service to rent the Fire a 67.8 kilometer separation with second adjacent Island Lighthouse. The revenue from the lease would be (Channel 278) Class B FM Station WQHT. Lake Success. -. used to restore the Lighthouse. However, the National New York. and a 66.2 kilometer separati~n with second Park Service would only approve a 25 foot addition atop adjacent (Channel 274) Class B FM Station WNEW-FM, the Lighthouse which would result· in a height above New York, New York, licensed to Metromedia. Prior to average terrain (HAAT) of 205 feet. As consequence, our action in Docket 80-90 revising the FM technical operation from this site is predicted to provide the re- standards, MOdification of FM Broadcasl Slalion Rules to 1293 FCC 87·49 Federal Communications Commission Record Increase the Availbility oj Commercial FM AssignmenlS, 94 are the separation requirements applicable to the particu­ F.C.C. 2d 152 (1983), the required minimum spacing was lar allotment for which applications are being tendered. 64 kilometers. In Docket 80-90. the minimum spacing In the present case. the applicable separation require­ requirement was increased to 69 kilometers. WBAB and ments are the former requirements. Doubleday argue that since both the NOlice and' the Report and Order for the Channel 27bA allotment in Bay Shore were released after the March L 1984, effective date LACK OF NOTICE for the new rules. the new spacing requirements should 8. Section 553 of the Administrative Procedure Act apply. Doubleday cites language in two subsequent Public requires that a notice of proposed rule making contain Notices in support. We disagree. Section 73.207 of the adequate notice and a fair opportunity for interested Rules requires that any petition for rule making for an parties to participate and present relevant information. FM channel comply with the minimum spacing require­ The content of such notice is also contained in Section ments. LIMBC filed its petition for rul~ making on Sep­ ].413 of the Rules. In this situation. Doubleday and tember 21, 1983. prior to the effective date for the new WBAB argue that the NOlice in the present proceeding minimum spacing requirements. Inasmuch as it complied failed to give adequate notice in that it specifically pro­ with the minimum spacing requirements then in effect it posed "Oak Beach" and did not indicate that we would was accepted on that basis. By Public NOlices, we adopted be considering a proposal for Bay Shore that would not interim policies and procedures to implement the new comply with the principal city coverage requirement in rules. This need was especially acute in this situation Section 73.315 of the Rules. because the Report and Order in Docket 80-90 was re­ 9. After a careful review of the NOlice oj Proposed Rule leased on June 14, 1983, and the new rules did not go Making in MM Docket No. 84-293. we are of the view into effect until March L 1984. Among our concerns was that this Notice did, in fact. alert interested parties that a fairness to parties with pending petitions for rule making proposed Bay Shore allotment was still before the Com­ and applicalions as well as panies who would be filing mission. This NOlice specifically referred to the either petitions or applications during the interim period. "Supplement" which embodied the Oak Beach proposal 7. In the December 9, 1983. Public Notice. we stated and the original petition which proposed Bay Shore. In that all petitions for rule making and applications for FM this regard, the NOlice mentioned that the earlier un­ channels filed on or before December 16, 1983. would be availability of the Fire Island Lighthouse was no longer a protected while the ominbus rule making proceeding barrier to the Channel 27bA allotment to Bay Shore. In (MM Docke! No. 84-231) was in progress. In regard to the an engineering exhibit to its petition, LIMBC recognized LIMBC petition, the proposed allotment complied with thai the 205 foot HAAT restriction imposed by the Na­ the 64 kilometer minimum spacing requirement then in tional Park Service would result in principal city coverage effect and on that basis was accepted. In the March 27. to only 45% of Bay Shore. It is for this reason that 1984 Public Notice. cited by Doubleday, we announced LIMBe filed the Supplement which used the word that in regard lO applications filed before March 1, 1984, "alternative" in regard to an Oak Beach proposal. Con­ complying with the old minimum spacing requirements, trary to the argument by Doubleday. LIMBC did not the new spacing requirements for second and third adja­ ahandon its Bay Shore proposal. Likewise. the Notice did cent channels will be automatically waived.

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