Opposition of Clear Communications, Inc. to Petition for Rulemaking.Pdf
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Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) Amendment of Sections 74.1203(a)(3) and ) RM No. 11786 74.1204(f) of the Commission's Rules to ) Protect Local Radio Service Provided by ) Fill-In Area FM Translators ) To: The Commission OPPOSITION OF CLEAR COMMUNICATIONS, INC. TO PETITION FOR RULE MAKING Clear Communications, Inc. ("Clear"), the licensee of full power radio station WVLT(FM), Vineland, New Jersey, hereby submits its Comments in opposition to the Petition for Rule Making ("Petition") filed by Aztec Capital Partners, Inc. ("Aztec") that proposes modification of Part 74 of the Commission's rules to reduce the protection accorded full service FM stations and other broadcast stations from interference caused by a fill-in FM translator station. In support thereof, the following is shown: Aztec's End Run At the time of the filing of the Petition, there was pending before the Commission an application submitted by Aztec for further minor modification of the facilities of FM translator station W221DS, Philadelphia, Pennsylvania (File No. BMPFT-20160728AAW).1 In a section of its Petition, titled "Petition's Own Proceeding," Aztec states: "In support of this Petition for l Subsequent to the filing of the Petition, Aztec filed an application to modify the facilities of W221DS by changing the frequency to Channel 2600 (92.9 MHz). Rule Making, Petitioner points to its own proceeding now before the Audio Division in which a distant FM station is seeking to forestall local service from tens of thousands of radio listeners to its fill-in." It is apparent that the Petition is a backdoor attempt by Aztec to change the FCC's rules in such a way that the names of the 217 listener interference complaints filed by Clear would not entitled to consideration. It is a long-held principle of administrative law that a rulemaking proceeding should not be used to change the result of a pending adjudicatory proceeding - that is an apt description of the apparent objective of the Petition. Flaws in Aztec's Petition As shown below, the Petition is flawed by the use of misleading arguments and misinformation in support of changing the FCC' s rules that would diminish the rights of full power FM stations. Aztec: "Today, however, in a full-circle perversion of the FCC's 1990 intentions, distant full-service stations are increasingly fostering the filing of complaints far outside their communities of license and service areas against FM translators that are enabling the reception of local AM radio stations and local diverse HD sub-channels. The result is that distant out-of market stations are driving FM translators carrying local radio stations off the air using the 1990 rules." Response: This statement sets forth a premise with no support and no definition. What is meant by "distant full-service stations"? Why are distant translators not included? What is the definition of "far outside their communities and service areas?" The Petition ignores the historical nature of FM radio listenership, namely, that listeners want to listen to their favorite program content wherever they are to the fullest extent possible. 2 Broadcasters such as Clear have long expected their signals to be received beyond their primary protected contours. Aztec, in effect, is asking the FCC to take away the established listening area of every full service FM station, translator and booster if interference from a new proposed translator would occur outside the primary service contour of the stations(s) being interfered with. Aztec: "The changes in Section 74.1203(a)(3) and 74.1204(f) are requested to protect local radio listeners in the primary station's community of license and service area against a loss of service precipitated by an out-of-market radio station seeking to claim distant radio listeners far outside its service area." Response: The fact that the translator 60 dBu in many cases will be only a mere fraction of the area of a Class B or Class A AM station's 2 m V /m contour or a Class B or Class C FM station's 70 dBu contour shows this proposal to be capable of adversely impacting significant areas of existing listenership. Aztec's proposed rule changes would strip away the ability of stations to protect their existing listenership by depriving them of the right to oppose or even comment on the resulting modification of a station's license. In effect, the proposed rule changes make fill-in translator applicants primary and all other stations secondary. Nothing in the Petition is an acknowledgement that most new translator applicants hope to secure listeners well outside their predicted 60 dBu service contour to perhaps the 50 dBu or even 40 dBu predicted service contours. By proposing that a new fill-in translator come on the air in areas where stations have existing listeners by definition means that the existing facility will cause interference to the proposed fill-in translator, potentially limiting the size of the proposed new fill-in translator's listenable area to even less than the 60 dBu contour. The total 3 failure of Aztec to consider this very practical real world aspect of its proposal is of significant concern. Aztec: Aztec claims that commencement of operations of its Channel 221 translator station has been forestalled by the licensee of an FM Class A station "50 miles away." Response: The transmitter site of WVL T site is approximately 31 miles ( 50 kilometers) from the city of Philadelphia. Pointing out the correct distance from Philadelphia, however, is not meant to suggest that distance should be a factor in interference cases. Terrain and accurate depictions of signal level using supplemental methods such as Longley-Rice help predict a station's actual listening area. Aztec: Clear " ... is attempting to extend its signal into the Philadelphia metro area claiming listeners far outside its community of license and service area." Response: This statement continues to use non-specific, undefined language and phrases which are both misleading and incorrect. The following is an excerpt from the Comments filed in this proceeding on May 8, 2017, by Al Sergi, a former Clear employee who worked at WVL T and sister station WMIZ for 22 years from the late 1970s until early in 1998. First I want to say that Aztec Capital claims that they are the only Latino Owned Station in the Philadelphia area, that's nice. However, Clear Communications has been programming their WMIZ 1270 AM Vineland, NJ with Latino programming from back in the early 1970's and with the exception of a couple of years, WMIZ AM has served the Latino listeners across Southern NJ, so Clear Communications has a great track record of serving the Latino population in the region. If anyone deserves an FM translator, it's WMIZ-AM. WVL T 92.1 FM Vineland, NJ is only a short drive from Philadelphia. I'm not sure where Aztec Capital received its information that WVLT is some 50 miles away from Philadelphia, but that's incorrect. The WVLT-FM Class A tower is 32 air miles from Center City Philadelphia, hardly a distant station. Considering all the tall buildings and interference that can be given to a signal, I can pick up WVL T rather well in downtown Philadelphia in my car. If I can get the signal at ground level, I know many say it comes in much better in the high rise building apartments in 4 Philadelphia. I know for a fact that WVLT-FM generates revenue from Philadelphia with its daily afternoon show that originates live from Philadelphia with the legendary DJ, Jerry Blavat. This show also has a slew of advertisers from the city and suburbs of Philadelphia. The Jerry Blavat show has been on WVL T daily for about 20 years that I can remember. If the show was not getting results for its sponsors, it would have ended years ago. So taking away the present signal WVL T enjoys in Philadelphia, although not as strong as local stations downtown, it is still a product that listeners enjoy and sponsors support. WVLT-FM programs live shows ALLDAY, yes, unlike just about everything else on radio, WVLT still has LIVE DJ's on the air, probably why people go out of their way to listen and yes the letters of support for the station are very real. They are well worth making the effort to tune in as I do every time I get near NJ. The Comments of Mr. Sergi, an experienced broadcaster in West Virginia who regularly travels through the WVL T listening area, shows how WVL T has served the Philadelphia market for many years. There has been no extension of the WVLT signal into the Philadelphia metro - it has simply been there for many years and, as Mr. Sergi points out, the station enjoys Philadelphia-based advertisers, programmers and listeners. Aztec: The filings submitted to the FCC by Clear "allege interference to at most several dozen purported distant listeners in the Philadelphia area." Response: A simple check of FCC CDBS records under the translator call sign associated with Aztec's translator application for WHAT, now a granted CP with call sign W260CZ (formerly W221DS) reveals that Clear's Reply To Opposition to Petition for Reconsideration, dated March 22, 2016, included 217 "listener declarations" from WVL T listeners stating that they are regular listeners to WVL T inside the 60 dBu contour proposed for W221DS. Aztec: Aztec states: "Now, as the FCC's Sections 74.1203(a)(3) and 74.1204(f) procedures stand, a radio station owner or manager is encouraged to troll for complaining 5 individuals to enable that owner or manager to extend his or her station's signal out to the 'owner's contour' - that last gasp of his or her radio signal coming through the FM hash.