Federal Communications Commission FCC 96-282

Before the Federal Communications Commission Washington, D.C. 20554 In re Application of ) ) Radio Ingstad Minnesota, Inc. ) ) For License to Cover Changes in ) File No. BLH-930310KC the Facilities of Station KMFX(FM), ) Lake City, Minnesota ) ) Application for Review ) MEMORANDUM OPINION AND ORDER Adopted: June 26,19% Released: July 18, 1996 By the Commission: 1. The Commission has before it the Application for Review filed on May 24,1995 by Olmsted County Broadcasting Co. and by United Audio Corp. ("Appellants")1 and the Opposition thereto filed on June 8, 1995 by Radio Ingstad Minnesota, Inc. ("Ingstad"), licensee of KMFX(FM), Lake City, Minnesota. Appellants seek review of an April 24, 1995 action of the Mass Media Bureau ("Bureau").2 By that action, the Bureau dismissed Appellants© May 6,1993 "Motion to Deny License" and granted Ingstad©s March 10, 1993 application for a license to cover a construction permit issued on April 30,1992. For the reasons set form below, we deny review of the Bureau©s action. 2. Background Appellants argued in their "Motion to Deny License" that, due to intervening terrain conditions, KMFX railed to provide either line-of-sight coverage or a minimum 70 dBu coverage of its community of license, as mandated by 47 C.F.R. §73.315. In support of this allegation, Appellants submitted terrain profile graphs allegedly demonstrating terrain obstructions between KMFX transmitter and Lake City as well as their own supplemental engineering showing based on the National Bureau of Standards© "Technical Note 101." Appellants reiterate these arguments in their Application for Review and resubrait the terrain profile graphs originally filed with the May 6 Motion.

1 Olmstead County Broadcasting Co. is the licensee of stations KOLM(AM) and KWWK(FM), Rochester, Minnesota. United Audio Corp. is the former licensee of station WNXRfFM), Rochester, Minnesota.

2 Letter to Radio Ingstad Minnesota. Inc. from the Chief Audio Services Division. Mass Media Bureau. April 24, 1995 (reference 1800B3-DEB/DJF/JR).

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3. The Bureau concluded that Appellants© pleading was "essentially a Petition for Reconsideration of the grant of Ingstad©s construction permit" and, as such, was untimely because it was filed nearly one year after public notice of that grant3 The Bureau, citing Section 309(c) of the Communications Act of 1934, as amended, and Chesapeake-Portsmoutfa Broadcasting Corp.. 53 FCC 2d 60, 61 (1975), held that Ingstad, as an applicant for a covering license as opposed to a construction permit, was in a protected position and entitled to grant of its application unless information coming to the Commission©s attention subsequent to grant of the permit demonstrated that a grant would be contrary to the public interest. The Bureau held that Appellants had not made such a showing. It indicated mat: (1) the staff had confirmed KMFX 70 dBu coverage of Lake City utilizing the relevant methodology, as set forth in 47 C.F.R. §73.313; (2) contrary to Appellants© arguments, applicants are not required to perform supplementary studies pursuant to Section 73.313(e) to demonstrate principal city coverage; and (3) since Ingstad©s license .application on its face complied with the principal city coverage provisions, consideration of Appellants© alternative contour analyses was not appropriate. 4. Discussion. Appellants© sole focus in the pleadings at issue here is the information contained in the construction permit application; they raise no issue with respect to the license application itself, nor do they argue that the station was not constructed in accordance with the terms of the permit Thus, we agree with the Bureau that the "Motion to Deny License" was in reality an untimely objection to issuance of the construction permit and conclude that it was properly dismissed

5. As stated by the Bureau, it is well settled that, absent extraordinary circumstances, the Commission will issue a covering license to the holder of a construction permit if it appears mat construction has been in accordance with the permit See. £,&, Sunbury Broadcasting CorporatiorL 23 FCC 2d 598 (1970), Effingfram Broadcasting Company. 4 RR 2d 494 (1965); and Benton Broadcasting Service., 9 RR 586 (1953); see also Chesapeake-Portsmouth Broadcasting Corp.. supra. Section 319(c) of the Communications Act of 1934, as amended ("Act") specifically provides in relevant part that the Commission shall issue a license to a permittee if it appears that the permittee has met all the terms, conditions and obligations set forth in the application and permit, and that no cause or circumstance arising or first coming to the knowledge of the Commission since the granting of the permit... would make the operation of such a station against the public interest * * * The provisions of section 309 (a), (b), (c), (d), (e), (f) and (g) shall not apply with respect [to] any license the issuance of which is provided for and governed by the provisions of this subsection. 47 U.S.C. § 319 (c).

3 The staff ruling also correctly concluded that Appellants had met none of the standards listed in 47 C.F.R. §1.106(c) for consideration effects presented for the first time on reconsideration.

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6. The Commission has read Congress© exclusion of Section 30&s remedies from license applications as an intent mat holders of construction permits are entitled to a "certain degree of protection" not available at the application for construction permit stage. KACYr Inc.. 30 FCC 2d 648, 650 (1971) (citing House Report on me Communications Act Amendments of 1952, 1 RR 10: 311), recon. denied 43 FCC 2d 563 (1973); see also. Meyer Broadcasting Company. 65 FCC 2d 438, 441 (1977) (Commission has considered grant of license applications to follow almost automatically from issuance of the construction permit and construction of station thereto). In Focus Cable of Oakland Inc.. 65 FCC 2d 35 (1977), the Commission further clarified the statutory distinction for applications subject to section 319 (c): Section 309 requires the Commission to make a finding that the public interest, convenience, and necessity will be served by a grant of the application under consideration. If it is unable to make such finding or if a substantial and material question of fact is presented, the application must be designated for hearing. Section 319(c), in view of its underlying policies and legislative intent, contemplates a more stringent standard than that required under 309 in order to deny an application or set it for hearing. The permittee under 319(c) is entitled to a presumption that the 309 public interest determination made during the construction permit proceeding continues in effect until it appears that circumstances have arisen subsequently that would make operation of the station flgflinfr the public interest. Furthermore, a hearing may not be designated unless matters are raised which, if proven, could justify such a finding. Id, at 39-40 (emphasis added). 7. Despite this strong presumption, issues may be presented at the license stage which could rebut the Section 309 public interest determination and thus lead to a hearing on the license application. One relevant factor in deciding whether a hearing might be appropriate is whether or not the parry raising the issues had knowledge of or could have discovered the alleged underlying facts through the exercise of ordinary diligence and nevertheless failed to come forward on a timely basis. Sse KACY. Inc.. 30 FCC 2d at 650. Consideration of this factor is necessary in order to balance the respective equities of me parties involved, i.e.. it is generally not fair to defeat a license application filed after substantial investment has been made to construct a broadcast facility that complies with the terms of a construction permit if the questions raised against the license application readily could have been raised and addressed prior to issuance of the permit Se& s^ Whidbey Broadcasting $ervjcea 4 FCC Red 8726, 8727 (1989). As noted, the issues raised against the license application in the instant case could have readily been raised during the construction permit application phase. See Paragraph 4, supra. 8. Most important, however, we must consider whether or not there are facts raised at the licensing stage which "clearly point to an injury to the public sufficient to outweigh considerations of administrative orderliness." KACY, Inc.. 30 FCC 2d at 650. No such facts

8963 Federal Communications Commission FCC 96-282 exist here. It is undisputed that Ingstad substantially satisfies the city coverage requirement using the standard prediction methodology specified in Section 73.313. Further, we have examined the supplemental engineering exhibit submitted by Appellants and find that the standard prediction method set forth in Section 73.313 is substantially accurate in predicting 70 dBu coverage and that the deviation due to terrain is small enough that it does not warrant overturning grant of Ingstad©s permit Our terrain roughness study indicates mat the slightly rougher than average terrain here would reduce the predicted 70 dBu contour by only 6 percent (1.3 kilometers). Additionally, the study indicates that the median signal level provided to Lake City is less than 1 dB below the required 70 dBu. Under the precedent cited here and me circumstances presented here, that disparity between the predicted and required signal strength level is ds mmimis and is not sufficient to justify denying Ingstad©s license application. 9. ACCORDINGLY, IT IS ORDERED, That me Application for Review filed June 8, 1995 by Olmsted County Broadcasting Co. and by United Audio Corp. IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary

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