10 FCC Red No. 13 Federal Communications Commission Record DA 95-1273 FAA would be required is 82 feet AGL - 147 feet AMSL. Before the WJCM©s assumed height of 340 feet AGL - 405 feet AMSL Federal Communications Commission is within the "notice" criteria of Part 77. SRN states that Washington, D.C. 20554 WJCM©s proposal would exceed Part 77.23(a)(2) by 140 feet AGL, its height in excess of 200 feet AGL less than 3 nautical miles from the Sebring Airport reference point. SRN also argues that a station cannot be built for Channel MM Docket No. 90-524 298A at Sebring that satisfies both Section 73.207 and Section 73.315 of the Commission©s Rules. Therefore, SRN In the Matter of opposes the allotment of Channel 298A to Sebring and requests the substitution of Channel 298C for Channel Amendment of Section 73.202(b), RM-7501 298C1 for Station WQBA(FM), Miami, Florida. Table of Allotments, RM-7631 3. WWRM in its comments argue that the proposed site for Channel 298A at Sebring does not meet mileage separa FM Broadcast Stations. tion requirements, assuming full use of the Commission©s (Sebring and Miami, Florida) 1 rounding-off methodology. WWRM contends that the pro posal is limited to one unique site which satisfies the spacing requirements of Section 73.207. This parcel lies REPORT AND ORDER approximately six miles to the southeast of Sebring, located (Proceeding Terminated) within 10,000 feet of the Sebring Air Terminal and is approximately one mile from an east-west runway at the Adopted: June 8,1995; Released: June 16, 1995 Sebring Air Terminal and is almost directly aligned with the Airport©s 4/22 runway. WWRM submits that the By the Chief, Allocations Branch: Sebring Airport Authority owns the only parcel in which a fully spaced facility may be located. WWRM states that 1. At the request of WJCM, Inc. ("WJCM"), the Com Sebring©s petition for rule making should be dismissed, mission has before it the Notice of Proposed Rule Making, 5 since there is no site which can satisfy both Sections 73.207 FCC Red 6579 (1990), proposing the allotment of Channel and 73.315(a) of the Commission©s Rules and Sections 298A to Sebring, Florida, as the community©s second local 77.23 and 77.25 of the Federal Aviation Administration FM service. WWRM. Inc., ("WWRM") licensee of Station ("FAA") Rules. Sections 77.23 and 77.25 of the FAA rules WWRM(FM), Channel 297C1, St. Petersburg, Florida, filed limit towers to a height of 150 feet above ground level comments. WJCM filed comments restating its intention to within a 10.000 foot radius of the Sebring Air Terminal©s apply for Channel 298A or any channel allotted to Sebring. north-south, non-utility or non-visual runway. WWRM Spanish Radio Network ("SRN"), licensee of Station submits that if the tower for Channel 298A at Sebring is WQBA(FM), Channel 298C1, Miami, Florida, filed com reduced to 150 feet above ground level to satisfy 14 C.F.R. ments and counterproposal requesting the substitution of Sections 77.23 and 77.25, then the proposed station would Channel 298C for Channel 298C1 at Miami, Florida, and provide city grade coverage to only one-third of the city of the modification of Station WQBA(FM)©s license to specify Sebring, in violation of Section 73.315(a) of the Rules. the higher class channel.2 WJCM filed reply comments. In WWRM states that WJCM must show that there is a "rea response to the counterproposal SRN and WJCM filed sonable basis" to conclude that FAA approval of a maxi comments and supplemental comments. After the record mum Class A facility can be obtained, citing Blackspear, closed WWRM filed a request for leave to file further reply Georgia, 2 FCC Red 3323 (1987). WWRM argues the fact comments and WJCM filed an opposition to WWRM©s that the site is owned by the local airport authority raises request for leave to file further reply comments.3 substantial doubts as to the availability of the site. WWRM 2. SRN in its counterproposal states that the allotment of also contends that under these circumstances "the Commis Channel 298A to Sebring will limit the possibility of Sta sion requires the proponent to provide an engineering tion WQBA(FM) operating with full Class C status. SRN study showing that the allotment can indeed be made in argues that WJCM©s reference point is located close to the conformance with the technical rules." See Creswell, Or Sebring Regional Airport, which is a public use airport egon, 3 FCC Red 4608 (1988). In addition, the Commis protected by Part 77 of the Federal Aviation Regulations. sion©s rules independently impose an affirmative obligation SRN contends that a Class A 6 kilowatt station is not on the petitioner to identify at the rule making stage more possible on Channel 298A, because an antenna tower tall than a "theoretical" site which is fully spaced. Where, as enough for a full Class A 6 kilowatt facility would intrude here, the allotment involves a site restriction. Section into protected airspace, and there would be possible radio 73.208(a)(2) calls for the submission of a "showing indicat interference to the aeronautical radio band. SRN submitted ing the availability of a suitable site." WWRM claims that an engineering analysis which determines the distance of WJCM has provided no such showing and, its proposal the proposed tower from the nearest point of the closest should be dismissed, citing Bay Shore, New York, 20 RR 2d runway which disclosed th.it the site is located approxi 1558 (1970). mately 8,200 feet from the closest point of Runway 36. At the distance specified, the allowable height before notice to 1 The community of Miami, Florida, has been added to the 3 Although these comments were filed after the pleading cycle caption. ended in this proceeding, we will consider them because they 2 Public Notice of the counterproposal was given February 15, provide a more complete record for resolution of this proceed 1991, Report No. 1838, RM-7631. ing. See Section 1.425 of the Commission©s Rules. 6577 DA 95-1273 Federal Communications Commission Record 10 FCC Red No. 13 4. In reply comments WJCM states that it has no reason 6. We have examined WWRM©s engineering statement to believe that the site proposed would be unavailable. and a staff engineering analysis confirms that the proposed Although located in the vicinity of the Sebring airport, use site in the Notice requested by WJCM would be technically of the site is not precluded by its location. The north-south infeasible for the allotment of Channel 298A to Sebring, runway of the Sebring airport is presently inactive, and the Florida. The allotment of Channel 298A to Sebring at the east-west runway has been dedicated to the Sebring Interna proposed coordinates is apparently the only site available, tional Auto Race held annually. WJCM states that the and the tower would be located within 10,000 feet of the opponents have produced no credible evidence that the Airport Terminal. In addition, a staff engineering analysis proposed site would not be approved by the airport author confirms WWRM©s engineering statement, along with the ity. WJCM submits a copy of a statement attesting to a submission of an FAA report which shows that at the conversation with the manager of the Sebring Airport, Mr. proposed coordinates a tower could not be built any higher Ed Jordan. Mr. Jordan indicated no particular difficulty than 172 feet (52 meters), above ground level, and a facility with an application to use the site suggested by WJCM, of that height with an ERP of 6 Kw would provide city however, his opinion is not binding upon the FAA. WJCM grade coverage to only one-third of Sebring©s community, states that SRN©s counterproposal to upgrade Station which makes the allotment infeasible. It also appears that WQBA(FM) at Miami, Florida, is not mutually exclusive the local airport authority owns the only parcel of land with the allotment of Channel 298A to Sebring, Florida. available where a tower could be located to meet the Channel 298C can be allotted to Miami. Florida at coordi Commission©s minimum distance requirement. In an at nates 25-32-34 and 80-28-07, while still allotting Channel tempt to resolve the conflict we conducted a channel 298A to Sebring, Florida. WJCM contends that the objec search to determine if there is an alternate channel avail tions raised by the opponents in this proceeding are more able for allotment to Sebring. We find that there are no properly handled by the Commission upon the submission fully spaced alternate sites or channels available for Sebring of an application. The sole exception made by the Commis that would meet FAA approval, and provide city-grade sion has been in the case of sites specified in allotment coverage to Sebring. The underlying requirement for an proceedings that do not meet the spacing requirements of allotment is the reasonable expectation that a useable site is the rules, or will not put a city-grade signal over the available complying with the minimum spacing require principal community to be served. WJCM states that once ments. Although the Commission generally presumes in a channel is assigned by rule making, an applicant is free rule making proceedings that a technically feasible site is to choose any transmitter site, so long as it provides city- available, that presumption is rebuttable.