• Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Amendment of Section 73.202(b) ) MB Docket No. 04-319 Table of Allotments, ) RM-10984 FM Broadcast Stations. ) (Coal Run, Kentucky and Clinchco, Virginia) ) FILED/ACCEPTED To: Office ofthe Secretary (Attention: The Commission) JUL 18 2011 Federal Communicabons Commission APPLICATION FOR REVIEW Office of the Secretary Dickenson County Broadcasting Corp. ("Dickenson"), licensee ofWDIC-FM, Channel 221A, at Clinchco, Virginia, by its attorneys, pursuant to Section 1.115 of the Rules, hereby files this Application for Review ofthe action ofthe Chief, Audio Division taken in the Memorandum Opinion and Order, DA 11-1072, released June 17, 2011 ("MO&O,,).l The action taken in the MO&O under delegated authority is based on erroneous facts and must be reversed by the full Commission. In a separate pleading, Dickenson is today filing a Motion ofStay ofthe MO&O because of the irreparable harm the channel change will cause to Dickenson's radio station. I. Background The MO&O granted a Petition for Reconsideration filed by East Kentucky Broadcasting Corporation ("East Kentucky"), licensee of Station WPKE-FM, Coal Run, Kentucky, ofthe Audio Division's action in Coal Run, Kentucky, and Clinchco, Virginia, 22 FCC Rcd 5347 (MB 2007) ("R&O"). That action had denied East Kentucky's proposal to substitute Channel 221C3 for I Under Section 1.4(j) of the Rules, Dickenson is filing this Application for Review on July 18, 2011, which is within 30 days of the release of the MO&O since the 30th day following release of the MO&O fell on a Commission holiday. As the MO&O is a document in a notice and comment rulemaking proceeding, it must be published in the Federal Register, and public notice runs from the date ofpublication. As ofJuly 18,2011, the MO&O had not been published in the Federal Register. Dickenson is filing today in an abundance of caution; however, Dickenson (continued....) H_ ! '"'~.~·n~ .~~,'r" A. 1..1 ' !\.fY-~ 0: LJ.. ',.~~c\";) ~ 'l':,:';"V U_Jl.t..-L-­ L1L;\ 8e DE Channel 276A at Coal Run, to modify Station WPKE-FM's license accordingly, and change the operating channel ofWDIC-FM from 221A to 276A to accommodate East Kentucky. On October 4, 2004, Dickenson showed why its license for WDIC-FM should not be modified as proposed in the Audio Division's Notice of Proposed Rule Making and Order to Show Cause, DA 04-2501, released August 12,2004. Dickenson showed that there was a major terrain obstruction between Coal Run and the proposed reference site that would preclude 70 dBJ-L service to Coal Run in contravention of Section 73.315(b) of the Rules. The R&O denied East Kentucky's proposed upgrade on Section 73.211(a) grounds. In its Petition for Reconsideration, East Kentucky claimed that the R&O misapplied Section 73.211. In its Opposition, Dickenson showed that, even assuming arguendo, East Kentucky was correct about the application ofSection 73.211(a), the proposal is not technically feasible because the terrain obstruction is worse than originally reported by East Kentucky and will require a significantly taller tower than indicated in the R&D. Dickenson rebutted the presumption that a proposed allotment site is available and feasible because East Kentucky did not show that it can construct a tower of 401 meters (1,317 feet) in mountainous terrain or obtain FAA clearance for the tower. 2 Although Dickenson submitted a terrain profile showing that a single radial does not provide line of sight to a reference point at the outer boundary of Coal Run, in the MO&O, the Audio Division said, "line ofsight is not absolutely required under Section 73.315(b) ofthe Rules provided that an engineering showing is made that the received signal strength as transmitted from the site will exceed 70 dBJ-L and will encompass the principal community." (...continued from previous page) reserves the right to supplement this Application for Review should the MO&O be published in the Federal Register. 2 Based on an engineering study East Kentucky submitted in its Reply to Dickenson's Opposition to Petition for Reconsideration, the Audio Division found that East Kentucky had demonstrated "that a 70 dBfl signal will encompass Coal Run. from the proposed transmitter site with facilities ofa towerof207 meters (679 feet) above ground level, aHAATof375 meters (1,230 feet), and an ERP of 1.75 kW," and that East Kentucky had demonstrated compliance with Section 73.315 of the Rules. The Audio Division also stated its belief "that a tower of207 meters (679 feet) does not trigger the concerns raised by Dickenson County with respect to a tower in excess of 400 meters (1,312 feet)," and so did not treat Dickenson disparately from East Kentucky for the reason that the facts involving Dickenson's proposal were "distinguishable from the present proceeding because the terrain obstruction in that earlier case was far more severe." Effective August 1, 2011, the Audio Division intends to involuntarily substitute Channel 276A for Channel 22lA at Clinchco, Virginia, and modify the license of Station WDIC-FM to reflect the change. As noted above, Dickenson today is filing a separate Motion for Stay of the effective date. Dickenson is submitting a comprehensive Engineering Analysis Exhibit ("EA Exhibit") attached hereto which shows that East Kentucky's proposal is not feasible in that it will not provide city-grade service to Coal Run. Dickenson respectfully urges the full Commission to review this matter and to reverse the Audio Division's action in the MO&O. II. Legal Basis for Review Dickenson brings this matter to the attention of the full Commission because the action taken by the Audio Division pursuant to delegated authority is in conflict with statute, regulation, (... continued from previous page) 2 In the MO&O, the Audio Division considered East Kentucky's Petition for Reconsideration even though East Kentucky filed its Petition for Reconsideration pursuant to the wrong rule. 3 case precedent or established Commission policy (Factor 1.115(b)(2)(i)) and the Audio Division made an erroneous finding as to an important or material question of fact. (Factor 1.115(b)(2)(iv). III. Questions Presented for Review • Can the Commission establish an effective date for an FM channel reallotment prior to 30 days after the date when notice of the action has been published in the Federal Register? (Factor I.II5(b)(2)(i)). • Can the Audio Division Ignore Persuasive Evidence that Terrain Obstructs 70 dBp. Service to the Proposed Community of License in Forcing an Involuntary Channel Change? (Factor 1.115(b)((iv)). IV. Relief Requested Dickenson requests the Commission to reverse the action taken in the MO&O such that it will not be required to change the operating channel ofWDIC-FM. V. Argument Federal Register Publication Not Yet Accomplished. The Commission may not establish an effective date for a channel reallotment prior to 30 days after the date when the action has been published in the Federal Register. Under Section I.II5(b)(2)(i) of the Rules, the action taken pursuant to delegated authority is in conflict with a statute and established Commission policy. Implementation ofthe channel changes set out in the MO&O cannot go into effect until 30 days after the MO&O is published in the Federal Register, which has not yet occurred, despite the best efforts ofcounsel and his paralegal to discover whether publication has taken place, or is proposed to be done at all. This proceeding is a rule making proceeding, despite the changes in 2006 to the manner in which the Commission processes applications seeking involuntary channel changes and the substitution ofchannels made as a result. The proceeding commenced as notice and comment rule making proceeding in 4 2004 and documents in the proceeding must be published in the Federal Register. Title 5 U.S.C. Section 533(d) (the Administrative Procedure Act or APA)3 requires that a substantive rule be published not less than 30 days before its effective date, except "as otherwise provided by the agency for good cause found and published with the rule." There is nothing in the MO&O that discusses the Federal Register, much less provides good cause for dispensing with publication.4 The R&O was published in the Federal Register even though it terminated the proceeding without making a change in the FM Table of Allotments. 5 The current MO&O is a matter of general applicability and, under Section 1A(b)(1) ofthe Rules, the applicable public notice date would be 30 days after publication in the Federal Register. See Boulder TO'vvn, Levan, Mount Pleasant, and Richfield, Utah / 25 FCC Rcd 8232 (2010), citing, Prineville and Sisters, Oregon, 8 FCC Rcd 4471 (MMB 1993). Thus, until 30 days after the MO&O is published in the Federal Register, it can have no effect. The importance ofproper notice was recently emphasized in Prometheus Radio Project v. FCC (D. S. Ct. App. 3rd Cir.) Case No. 08-3078, et al (2011 U.S. App. LEXIS 13855), July 7, 2011 (Order vacated and remanded for failure to comply with the AP's notice and comment requirements). 3 Section 553 (d) ofthe APA provides: The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except­ (1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretative rules and statements ofpolicy; or (3) as otherwise provided by the agency for good cause found and published with the rule." 4 The only reference to the Federal Register in the MO&O is found in footnote 19 where Dickenson's argument was trivialized that it had been prejudiced by East Kentucky's proceeding under Section 1.106 rather than 1.429, thus forcing Dickenson to respond more quickly to East Kentucky's petition than would otherwise be required.