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ORIGINAL Navigable Air Space Or Air Navigation Facilities

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ORIGINAL Navigable Air Space Or Air Navigation Facilities BEFORE THE FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 In the Matter of ) ) Amendment of Section 73 .202(b) ) MB Docket No. 05-10 Table ofAllotments ) RM-11279 FM Broadcast S.tations ) (The Dalles, Tualatin, Eugene, Albany, Lebanon, ) Paisley, and Diamond Lake, Oregon and ) Goldendale, Washington) ) FILED/ACCEPTED To: Marlene H. Dortch, Secretary SEP 29 2008 Attn.: Assistant Chief, Audio Division, Media Bureau Federal Communications Co . Dtti mmlssion ce of the Secretary FURTHER SUPPLEMENT TO PETITION FOR RECONSIDERATION Portland Broadcasting, LLC ("PB"), licensee of Station KXPC-FM, Lebanon, Oregon, Bicoastal Media Licenses IV, LLC (successor in interest to Columbia Gorge Broadcasters, Inc. and M.S.W. Communications, LLC), licensee of Station KACI-FM, The Dalles, Oregon and Station KMSW(FM), The Dalles, Oregon and Extra Mile Media, Inc., licensee of Station KHPE(FM), Albany, Oregon (collectively, the "Joint Petitioners"), hereby supplement their Petition for Reconsideration filed on October 27, 2006 in this proceeding. In support oftheir position, the Joint Petitioners submit the following: The Media Bureau, in its Report and Order, 21 FCC Rcd. 10017 (MB 2006), dismissed the Joint Petitioners' rulemaking proposal based on the issuance ofa Notice of Presumed Hazard by the Federal Aviation Administration ("FAA") stating that the Joint Petitioners' proposed allotment ofChannel300C at Station KNRQ-FM's transmitter site would have an adverse physical or electromagnetic interference (EMI) effect upon No. of Copies (OO'd_O~'i~ List ABCDE ORIGINAL navigable air space or air navigation facilities. Specifically, the use ofChannel 300 at Station KNRQ-FM's "current transmitter site would have a negative impact on air/ground communications and cause unacceptable interference to the Eugene, Oregon Instrument Landing System (ILS) operated by the FAA."[ In their Petition for Reconsideration, Joint Petitioners urged the Media Bureau to reconsider its action and grant their proposal or, at the least, to withdraw the Report and Order without prejudice to any further action that the Bureau might take in the future based on a more complete record since the earlier Bureau action was not based on a final judgement ofthe FAA.2 In their Reply to Opposition to Petition for Reconsideration, Joint Petitioners reported that th(~y were in the process of seeking a favorable resolution ofthe EMI I 21 FCC Red at 10020. The Joint Petitioners had stated in their May 2, 2005 Comments on Order to Show Cause that the concerns expressed by Cumulus Licensing, LLC ("Cumulus"), licensee ofStation KNRQ-FM, Eugene, Oregon, that changing the operating channel for Station KNRQ-FM from Channel 250 to Channel 300 would create harmful electromagnetic interference (EMI) in connection with the Eugene Airport could easily be resolved by having the FAA make localizer frequency changes. Portland Broadcasting, LLC offered to reimburse the FAA for its expenses incurred in changing airport ILS localizer frequencies. Thus, any actual or predicted EMI would be satisfactorily resolved at no cost to the FAA. Joint Petitioners, Comments on Order to Show Cause, filed May 2,2005 at p. 4, n. 4. Kevin Terry, Vice President ofEngineering ofPortland Broadcasting, LCC, noted in his Declaration attached to those Comments that PB had contracted the services ofan FAA consultant to conduct EMI interference studies in the vicinity ofFAl. facilities at Mahlon Sweet Field Airport at Eugene in order to identify alternate ILS frequencies that the FAA could utilize for its localizers to eliminate any possible interference created when Station KNRQ-FM changed to Channel 300. 2 Joint Petitioners, Petition for Reconsideration, filed October 27,2006 at pp. 2-3, 6. In an Engineering Statement attached to the Joint Petitioners' Petition for Reconsideration, Kevin Terry again explained that the Joint Petitioners had obtained the services ofan FAA consultant to examine the EMI that might be caused by the change ofchannel by Station KNRQ-FM from Channel 250 to Channel 300 at its current site. Mr. Terry explained that, as part ofthe Joint Petitioners' proposal, not only would Station KNRQ-FM change channels from Channel 250 to Channel 300, but Station KHPE(FM), Albany, Oregon, would change channels from Channel 300 to Channel 279. Studies done by the Joint Petitioners' FAA consultant showed that when Station KHPE changed its channel to Channel 279C, the potential for EMI at airports in Eugene, Corvallis and Newport would be significantly reduced, ifnot eliminated. Thus, public aviation safety would be improved with the significant reduction or elimination ofexisting EMI at the Eugene, Newport and Corvallis airports as a result of Station KHPE changing channels. Changing the frequencies ofthe localizers at the Eugene Airport would eliminate all present and future EMI to that facility. - 2 - problem with the FAA, contrary to Cumulus' claims that no work was being conducted by the FAA on Joint Petitioners' request to find alternate ILS frequencies. Joint Petitioners again included an Engineering Statement from Kevin Terry explaining that the Joint Petitioners' efforts to work with the FAA to identify and implement localizer frequency changes at the Eugene Airport were continuing and that the FAA did not consider the matter closed: "When the Joint Parties and the FAA are able to identify alternate frequencies for the Eugene Airport localizers that would not be subject to EMI generated from any nearby station operating on Channel 300, KHPE [KNRQ­ FM] or otherwise, the Joint Parties will enter into a reimbursement agreement with the FAA to pay for the implementation of such changes. Upon implementation ofthese frequency changes...aviation safety [will] be immediately improved at the Eugene Airport under the current I'M spectrum...and, as a direct result of implementing the proposed rulemaking, not only would the Commission's allotment priorities be furthered, but aviation safety at the Newport and Corvallis Airports would also be immediately improved."] The Joint Petitioners have subsequently filed two Supplements to their Petition for Reconsideration. On March 28, 2008, the Joint Petitioners filed a Supplement containing emaiJ messages from the FAA expressly acknowledging that FAA deliberations were complete and that, contrary to Cumulus' repeated claims, the FAA was ready to move ahead with changing the frequencies ofthe EUG and ADE localizers at Eugene Airport. J Joint Petitioners, Reply to Opposition to Petition for Reconsideration, filed January 18,2007, Engineering Statement, pp. 7-8. - 3 - In a June 24, 2008 Further Supplement to Petition for Reconsideration, the Joint Petitioners submitted a copy of a Reimbursable Agreement between the FAA and PB. The Agreement expressly stated that the FAA would be changing the frequencies ofthe EUG and ADE localizers at Mahlon Sweet Field Airport in Eugene, in September 2008, in conjunction with other work planned at Mahlon Sweet Field Airport. That is where the matter stood prior to September 10, 2008. On that date, the FAA issued a Determination ofNo Hazard to Air Navigation with respect to the proposed allotment ofChannel300C for the Station KNRQ-FM antenna tower site in Eugene. The Determination expressly states that the previous electromagnetic interference concern expressed in the FAA February I, 2007 Notice ofPresumed Hazard -- which the Media Bureau cited as the basis ofits dismissal ofJoint Petitioners' proposal in its 2006 Report and Order -- had "been mitigated" in view ofPB's commitment made in the Reimbursable Agreement funding the localized frequency changes. As such, "the FAA's EMI objection was removed" in view ofthe "mitigation ofthe identified EMI issues for any potential frequency change at this [KNRQ-FM] tower location.,,4 See Attachment. 4 The FAA Determination is at direct odds with Cumulus' repeated declarations to the Commission that the FAA considered there to be no solution to the potential EMI problem at the Eugene Airport. See e.g., Cumulus Licensing, LLC, Opposition to Petition for Reconsideration, filed November 9, 2006 at p. 7 (the "decision by the FAA...will not be changed, nor are Joint Petitioners currently engaged in any proceedings at the FAA to do so."). Despite Cumulus' best efforts to portray the FAA as unwilling to even consider localizer channel changes at the Eugene Airport, the exact opposite was true. Joint Petitioners' repeated advisories to the FCC that any EMI problems could be favorably resolved, while repeatedly challenged by Cumulus, were fundamentally correct. Cumulus' other objections to Joint Petitioners' proposal are equally baseless. -4- In view ofthe FAA's affirmative Determination with respect to the KNRQ-FM frequency change, the sole basis cited by the Media Bureau supporting the dismissal of Joint Petitioners' rulemaking proposal has now been removed. Accordingly, the Bureau should grant Joint Petitioners' Petition for Reconsideration and should proceed to review and approve the Joint Petitioners' proposal under the Commission's allotment priorities. Respectfully submitted, PORTLAND BROADCASTING, LLC BICOASTAL MEDIA LICENSES IV, LLC E~ G--·t~(~f) By: By: LeeJ.~~~P; zm Erwin G. Krasnow Aaron ~. Shainis Garvey Schubert Barer Shainis & Peltzman, Chartered, NW 1000 Potomac Street, N.W. 1850 M Street, Suite 240 5th Floor, Flour Mill Building Washington, DC 20036 Washington, D.C. 20007 EXTRA MILE MEDIA, INC. By:~D6~f1~~qP) Dominic Monahan I! uvaas Cobb Richards & Fraser, PC 777 High Street, Suite 300
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