Federal Communications Commission Record FCC 91-104

6 FCC Rcd No.9 Federal Communications Commission Record FCC 91-104

Notice") stated: Ilthese waivers ~ill only begrarited when Before the the applicant provides sufficient justification such asa Federal Communications Commission lack of alternative transmitter sites·and/or frequencies~1l As Washington, D.C. 20554 to interference caused by NCE-FM applicants, the Com mission has historically adopted a much stricter approaCh and, consequently. has rarely in the past waived this type In re Applications of of interference. The cases before us present an opportu nity to revisit the appropriate waiver standards to be Educational BPED-840328CA applied in cases of second and third adjacent channel overlap, in light of the current reserved band environ Information Corporation ment. 3. WCPE(FM). In its petition, WCPE contends that the For Modification of Noncommercial . Mass Media, Bureau (ltBureauf!) erred in denying its re Educational Station WCPE(FM) quest for waiver of 47 C.F.R. § 73.509 and dismissing its Raleigh, North Carolina application for,~ construction permit. Specifically, the petitioner contends that the Bureau: (i) acted in con Campbell BPED-880810MA tradiction of the CO'mmission's policy of ro:utinely au University. Inc. thorizing the waiver of interference received by noncommercia.l educational FM C'NCE";FM") applicants whehroug~ly 10 percent or less of the proposed service For Modification of Noncommercial 2 area (ImVlm contour) is affected ; (ii) improperly con Educational Station WCCE(FM) cluded that the. applicant had failed to consider the use of Buies Creek, North Carolina alternate frequencies. or transmitter sites. that might .alle viate the need for a waiver; and (iii) failed to consider-the public interest benefits that would accompany a grant, of MEMORANDUM OPINION AND ORDER its applicatio'nand waiver request. 4. wePE is currently licensed to operate with aneffec· Adopted: April 3, 1991; Released: April 24, 1991 tive radiated power (ERP)of 33 kilowatts and an antenna height'above average terrain (HAAT) of 82 meters. On By the Commission: March 28, 1984, in an' effort to ·improve its .signal coy-' erage in Durham, NC and Chapel Hill, NC, WCPE filed a 1. The Commission has before it a petition for reconsi major-change application to increase' its ERP to' 100 kilo deration filed March 3, 1989, on behalf of the Educa watts, increase HAAT to 207 mete·rs,. apd relocate, ~ts tional [nformation Corporation, licensee of WCPE(FM), transmitter site 18.2 kilometers. no~theast. This proposal lI Raleigh, North Carolina C'WCPE ). This petition seeks will extend WCPE's 1 mV/mcoverage contour approxi reconsideration of a staff action by letter dated February mately 14' kilometers beyond its currently licensed -1 1, 1989, which denied WCPE's request for waiver of 47 mV/m contour in'the directi?ns'of seeo'tid-adjacent chan~ C.F.R. § 73.509 and dismissed its major-change applica nel stations WCCE(FM), Buies Creek, NC ("WCCE") and tion. In addition, the Commission has before it a major· WXYC(FM), Chapel Hill; NC ("WXYC"). This expansion change application filed, by Car:npbell University, Inc., of WePE's coverage contour will result in prohibited licensee of WCCE(FM), Buies Creek, North Carolina, on overlap for the first time between ,WePE's 1 mV/m 'con August 10, 1988 and .its accompanying request for waiver tour and WCCE's 10 mV/m cOritourcontrary to the pro of 47 C.F.R. § 73.509. The issues involved in both re visions of 47 C.F.R. § 73.509. The overlap with WCCE quests are interrelated, ,and they will be considered sepa would be 58.9 sq. km (82 percent of WCCE's 10 mVlm rately below. contour). Likewise, the expansion of WCPE's coverage 2. These cases inyolve the Commission's current policy contour will increase the prohibited o'verlap between regarding second and third adjacent channel contour WCPE'S I mVlmcontour and WXYC's10 mVlm contour overlap for noncommercial, educational stations (lt NCE from 36.2 sq. km (62 percent of WXYC's 10 mVlm con FM").' By way of background regarding this policy, 47 tour) to 58.4 sq.km (100 percent of WXYC's' IWmVlm C.F.R. § 73.509 ·states in pertinent part: "An application contour). Because its proposal did 'not comply with Sec for a new or modified NCE-FM station other than a Class tion 73.509, WCPE requested awaiver of the rule. By staff o (secondary) station will not be accepted if the proposed letter dated February 1, 1989 .. the: waiver request was operation ,would involve overlap of signal strength con denied. tours with :any other station licensed by the Commission 5. Inits petition for reconsideration,WCPEasserts that aild operating in the reserved band ... [contour overlap the grant of its application would result in: WCPE receiv standards are 'set forth in a chart included in the rule]." ing only minimal interference from the two second-adja On July 16, 1981, the Commission, en bane, delegated cent channel stations; WXYC and WCCE. The area of authority ,to the Chief of the Broadcast Bureau (now the overlap with WXYC would be 0.45 percent and the area Mass Media Bureau) to waive this rule regarding ihterfer~ of overlap with WCCE would be 0.39 percent - an ag ence received by NCE-FM applications, when warranted, gregate amount totalling .84 ,percent of WCPE's' service provided such. interference did not exceed roughly five area which the petitioner maintains is de minimis.' Fur 'percent of the proposed service area; A Public Notice, thermore, WCPE asserts that. its proposed -interfering con FCC '81-322, released July 17, 1981, entitled" Delegation tour would not cause overlap to the coverage contours of of Authority to the Chief of the Broadcast Bureau to Waive WXYC, WCCE or any oiMr stations. WCPE contends Small AmoUnts of Interference Received by Non-Commer that it is the Commission's policy to grant such waivers cial Educational FM Proposals, " 49 RR 2d 1524 ("Public where the amount of overlap within its service area is less

2207 FCC 91-104 Federal Communil:ations Commission Record" 6 FCC Rcd No.9 than 10 percent and lithe necessary'factual predicate" has 9. However, we wish to'. take this opportunity to re been demonstrated. Petition at 9. WePE also contends examine our waiver policY).l1, q),~J~mited area of proposed thafthe staff's refusal to waive Section 73.509.in the second, or: third ap.j~c~P:t:;~,channel overlap of instant case cannot be reconciled with either Commission noncommercialeducatio'nal, .staqo4s'.:,qverlap of co-chan policy o{actions t'aken in previous cases. nel or' first adjac~-nt chan:nei' .$ig'n·a.i'~·'is a more serious 6. WePE contends throughout the petition that its ap matter since the interference that m'ay occur results in the plication fulJy satisfies the Commission's established cri loss of service over a wide area.' Sec,ond or third adjacent teria for waiver of the rule prohibiting interference channel overlap may result in the '. replacement of one received~ As authority for its. contention, WePE' cites signal by a.nother (not the complete loss 'of service) and is Public Notice, FCC 81-322, supra. WCPE states that, "[i]t confined toa very small area around the transmitter of is well-settled that waivers of Section 73.509 of the Rules the interfering station. 'In additionj'the,potential for such will be granted when merited. Indeed, ... the Commission interference to occur depends to a great extent on the has given th~,staff delegated authority to grant waivers of quality of the receivers used within"~the affetted area. received [overlap] of up to 10 percent where theapplicant 10. The Commission has long: recognized the unique provides sufficient _justifica,tion _such as _a lack, of alter characteristics of the noncommercA~L?~.Fyic,e"and the need native transmitter sites and/or frequencies." Petition at 8. for flexibility to respond 'to the growing demand for such WCPE asserts that the staff assu:med a "crabbed viewll of service.3 We are also more sensitive today to the increas its deiegated authority in (his case in' order to' pursue its ing limitations within the reserved band which reflect the goal of spectrum efficiency. WCPE has asserted that. a increased demand for service over the last 30, years. For waiver of 47C.F.R. § 73.509 is· in the public interest these reasons, we are now inclined to grant waivers of becal.:lse the amount of interference to be received from second or third adjacent channel overlap in circumstances WXYC and WCCE is minimal compared, to the amount such as WCPE's, where the benefit of, increased of new service WCPE would provide. WCPE also believes noncommercial educational servicesQ.I1~avi1y outweighs that the staff's dec~sion fails to consider the. pttblic interest the potential for interference in very small areas. How benefits w'hich would be realized from the' grant of. its ever, because of the concern for the ability of the stations application, and fails to acknowle~ge the ,signifiCant Pllb causing interference to make,any future changes in their lie demand' for expansion, as evidenced by the large vol own facilities, as discussed below, we believe that the ume of'correspondence received by the station:. waiver of interference,received must be granted with the 7. As WCPE pqirits out, the ¢oinmission has given the acknowledgement that future modifications proposed by staff delegated authority to act on waivers of received the affected licensees will not be construed as a per se overlap of up to 10 percent where sufficient jl!Stification is modification of the waiver recipient's license. provided. We did not by the Public Nolice nullify the 11. Accordingly, we find 111.a,t, for the reasons set out longstanding prOhibition against occurrences, of, ,harmful above, the public interest"woul{b't~seryed by waiver of 47 overlap, includingoverlap received. As we stated in Board C.F.R. § 73.509 and grant of WC~E's proposal. . of . f';ducation of the City of Atlanta (WABE-FM), 12. WCCE(FM). WCCE,j Buies Creek, North Carolina, ("WABE") 82 FCC 2d 125 (1980), "[ijncreased coverage is currently, licensed to operate with an ERP of 3 kilo alone is insufficient to warrant a waiver, of the rule. watts ·and an HAAT of 32 meters. O.n August 10, 1988, Power in'crease proposals which increase, overlap received WCCE filed a rnajor-change:.~pplicat~on to increase its are with rare exceptions, accompanied by increased cov ERP to 22.5 kilowatts 'utilizing H; ciirectional antenna, erage:However,when faced with a choice between in increase HAAT to 140 meters, and, r~Xocat~ its transmitter creased .,coverage with increased interference received on 9.4 kilometers southea~t. .WCCE'~proposalylOuld increase one harid, and lesser but adequate coverage without pro: the prohibited overlap area;ca,useq ,t9 WCPE's proposed 1 hibited interference on the other, the Commission favors mV/m coverage contour by weCE's 10 ,IflV/m interfering the latter." [d. at 127. The mere granting of delegated contour from 58.9 sq. km (0.45 percent of WCPE's 1 authority did not overturn that position. mVim contour) to 106.9 sq. km (0.8 percent of WCPE's I 8. Although WCPE argues that it did provide additiomil mV/m contour).4 This. contour ,overlap contravenes 47 support for the waiver, .the dqcumentation sub,mittedby C.F.R. § 73.509. WCCE is not mutually exclusive with WCPE supporting its contention that no alternative fre WCPE's proposal as it 'Nas filed, untimely' with respect to quency or transmitter site Vias available was conclusory, at WCPE's cut-off date ofSeptember 26, 1986: Accordingly, best. WCPE merely presented a list of NCE-FM alloca WCCE requests waiyer of 47 C.F.R. § 73.,509. tions in the Raleigh area and from, that list deduced that 13. In its waiyer request WCCE states that WCPE has no other possible frequency was available to the applicant. agreed tl) receIve the proposed increase in overlap and No analysis of preclusion was proffered. Furthermore, as asserts seyeral reasons why j11,1plementation of its proposal to the availability of alternative sites, WCPE simply stated would be in the public interest. First" WCCE contends that the selection of a different site to avoid interference that the prohibited overlap will affect. less than one wa~ impossible because the applicant desired to serve percent of the population and area.within WCPE's pro those markets in which the interfering stations are lo posed 1 mV/m,coverage contouL WCCE also asserts that cated. WCPE has, in effect, deliberately chosen to extend its proposal will improve, rather than w.orsen, the its signal into .a1'l: area where prohibited overlap is in~scap WCCEIWCPE. overlap. problem because' its proposal able. Therefore, the staff found that the waiver request would relocate its transmitting location from within was primarily grounded of1. the benefits of expanded ser WCPE's proposed 1 mV/m coverage :contour to ,outside it. vice and properly,found WCPE's justification insufficient Further, WCCE states that the area of proposed overlap, for grant of the requested waiver. The staff did not err in although larger, lies no closer to WCPE's transmitter site dismissing WCPE's application. than the current area of overlap. Finally, the service area of WCCE will be increased by 2,308 square km, a 351 percent increase.

2208 6 FCC Rcd No.9 Federal Communications Commission Record FCC 91·104

14. Whereas WCPE's proposal discussed above involved field strength ratios. The new rule (47 C.F.R. § 73.509) prohibits overlap received, WCCE's proposal involves overlap the 1 mV/m coverage contour of a station to be overlapped by caused and therefore requires separate. consideration. We another station's interference contour. Specifically; such author note, however, that proposals such as WCCE's are the ity is now limited to 10 percent "overlap" received versus 5 "other side of the coin." Where waivers are approved to percent "interference" received under the old policy. In its allow sta"tions to receive overlap, there is always a station pleading, WCPE often incorrectly uses the term "interference'l causing it. Thereafter any increase or displacement in the when referring to "overlap." facilities of the "causing" station will result in new over 3 Historically, both Congress and the Commission have recog lap. To avoid perpetually restricting such stations to their nized the special standing of the noncommercial educational current facilities, and in view of the limited nature of the service. Most notable is the spectrum reservation policy whereby interference potential of second or third adjacent channels noncommercial stations are afforded protected frequency aUo.ca discussed above, we are inclined to view waiver requests tions for their exclusive use. Twenty FM channels, 201 through such as WCCE's favorably.where there is clearly a public 220 (88.1 through 91.9 MHz), are currently reserved for educa~ benefit. . tional use. Separate technical standards have been applied to the 15. In this case, significant additional service will be noncommercial educational service as welL For example, the provided by expansion of WCCE, and the increase in area Commission's FM allocations scheme for the non-reserved band of overlap is very small. For these reasons, we find that is .predicated on a Table of Allotments which -allots particular the public interest will be served by waiver of 47 C.F.R. § channels to particular c-ommunities and provides protection pri 73.509 and grant of the WCCE proposal. marily in terms of mileage separation criteria between stations. 16. Accordingly, the Educational Information Corpora This system was designed to anticipate future needs of new tion's "Petition for Reconsideration," filed March 3, 1989 stations or enlargements in ,coverage of existing stations and to IS HEREBY GRANTED to the extent indicated above; its protect those needs against any possible encroachment.' The application IS HEREBY REINSTATED NUNC PRO Table provided the Commission with an overall nation-wide TUNC; the provisions of 47 C.F.R. § 73.509 ARE HERE· allocation plan. Tl1e reserved band, on the other hand, operates BY WAIVED to the extent. necessary to p'~rmit the sec on a demand basis principle - a process where the applicant ond-adjacent channel overlap received; and application proposes a particul,!-r technical facility which must not involve BPED-840328CA for WCPE(FM). Raleigh, North Caro interference with co-channel or adjacent channel stations based lina IS HEREBY GRANTED. Acceptance of the grant of on protected and interfering con~our criteria rather than a this waiver will constitute' an acknowledgement by WCPE distance sepa,ration standard. Noncommercial educational sta~ that future modifications to the facilities of WCCE and tions are also subject to inherent limitations, such as the pro VlXYC wilf not constitute a per se modification of hibition on their, use of advertising, and the definitional WCPE's license. requirement that they be non-profit, educational entities. 17. Further, Campbell University, Inc.'s request -for 4 44.4.sq. km of the current overlap area would be eliminated, waiver of 47' C.F.R. § 73.509 IS HEREBY GRANTED, while 14.5 sq. km would remain. 92.4 sq. km of new overlap and its application for upgrade in facilities for would be created. WCCE(FM), Buies Creek, North Carolina BPED 88081OMA, IS HEREBY GRANTED.

FEDERAL COMMUNICATIONS COMMISSION

Donna R. Searcy Secretary

FOOTNOTES 1 Prohibited overlap occurs when a station's interference con tour overlaps another station's service contour. The terms "overlap caused" and "overlap received" are used in reference to a specific station proposing a facility change. If Station A is proposing to _expand its service contour and the new service contour will be overlapped by Station B's interference contour, Station A is said to receive overlap from B. If station B is proposing 'to -increase its facilities sO that its proposed interfer ence contour would overlap Station A's service contour, Station B is said to cause overlap. Under some circumstances a proposal may both cause and receive overlap. These, terms will be used throughout this document. Z In Paragraph 56 of the Memorandum Opinion and Order in ·BC Docket No. 20735, 50 Fed. Reg. 27954 (July 9, 1985). the Commission modified the Bureau's delegated authority to grant waivers to conform to a new method of calculating interference. The old method was based on the use of "undesired-to-desired"

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