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Bremerton And Bainbridge Island, WA, Low Power FM Applications

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Released: November 8, 2013

Federal Communications Commission

Washington, D.C. 20554

November 8, 2013

DA 13-2143

In Reply Refer to:
1800B3-SS
Released: November 8, 2013
Calvary Chapel of Bremerton
c/o Harry C. Martin, Esq.
Fletcher, Heald & Hildreth, PLC
1300 N. 17th St., 11th Floor
Arlington, Virginia 22209
Ms. Michele Molnaire
Bainbridge Island Broadcasting
P.O. Box 10449
Bainbridge Island, Washington 98110
In re:
(NEW), Low Power FM, Bremerton, WA
Calvary Chapel of Bremerton
Facility ID No. 134864
File No. BNPL-20010614ADW
(NEW), Low Power FM, Bainbridge

Island, WA

Bainbridge Island Broadcasting
Facility ID No. 133912
File No. BNPL-20010601AFS

Petition to Deny

Dear Counsel and Ms. Molnaire:
This letter concerns: (1) the referenced, mutually exclusive applications of Calvary Chapel of
Bremerton (“CCB”) and Bainbridge Island Broadcasting (“BIB”), for construction permit for a new Low
Power FM (“LPFM”) station at Bremerton and Bainbridge Island, Washington, respectively; and (2)
BIB’s April 26, 2005, Petition to Deny (“Petition”) CCB’s application.1 For the following reasons, we
dismiss the CCB and BIB applications, and we dismiss the Petition as moot.

Background

. In June 2001, CCB and BIB filed applications for a construction permit for a new
LPFM station on Channel 283 (104.5 MHz) at Bremerton and Bainbridge Island. Subsequently, in


1 On May 2, 2008, CCB filed a Motion for Extension of Time to respond to the Petition and filed an Opposition to
the Petition on May 9, 2008.

accordance with established procedures,2 the staff released Public Notices accepting the BIB application3
and CCB application4 for filing. BIB timely filed its Petition on April 26, 2005.
On April 3, 2009, as the culmination of a channel reallotment process initiated in 2002,5 the staff
granted a covering license application for the reallotment of co-channel full-service commercial Station
KMCQ(FM) from The Dalles, Oregon, to Covington, Washington.6 CCB’s and BIB’s applications are 56
and 58 kilometers, respectively, short-spaced to Station KMCQ(FM)’s currently authorized modified
facilities under Section 73.807(a)(1) of the Rules.7

Discussion

. In the Local Community Radio Act of 2010 (“LCRA”),8 Congress implemented a
set of protections designed to avoid interference between LPFM and full-service FM stations.9 Although
it relaxed certain restrictions on LPFM stations in order to facilitate the growth of the LPFM service, the
LCRA explicitly prohibited the Commission from reducing co-channel separation between LPFM and
full-service FM stations.10 Specifically, Section 3(b)(1) of the LCRA statutorily bars the Commission
from “amend[ing] its rules to reduce the minimum co-channel and first- and second-adjacent channel
distance separation requirements” in effect on the date of its enactment.11 Here, CCB’s and BIB’s
applications are significantly short spaced to KMCQ(FM)’s licensed facilities. Although the Commission
has authority to waive regulatory requirements, it does not have authority to waive a requirement imposed
by statute.12 We must therefore dismiss CCB’s and BIB’s applications. In addition, we will also dismiss


2 See 47 C.F.R. § 73.871(d).
3 See Broadcast Applications, Public Notice, Report No. 25562 (rel. Sep. 3, 2003).
4 See Broadcast Applications, Public Notice, Report No. 26037 (rel. Jul. 29, 2005).
5 See Arlington, The Dalles and Moro, Oregon, and Covington and Trout Lake, Washington, Notice of Proposed
Rulemaking, 17 FCC Rcd 10678 (MB 2002); see also Arlington, The Dalles, Moro, Fossil, Astoria, Gladstone,
Portland, Tillamook, Coos Bay, Springfield-Eugene, Manzanita and Hermiston, Oregon, and Covington, Trout
Lake, Shoreline, Bellingham, Forks, Hoquiam, Aberdeen, Walla Walla, Kent, College Place, Long Beach and
Ilwaco, Washington,
Report and Order, 19 FCC Rcd 12803 (MB 2002).
6 See File No. BLH-20080915AEW; see also Broadcast Actions, Public Notice, Report No. 46959 (rel. Apr. 8,
2009). KMCQ(FM) subsequently sought to modify its transmission facilities, upgrading from a Class C3 to a Class
C2 facility. See BMPH-20090929ALM, granted on October 9, 2009, and BLH-20100125AEW, granted on March
22, 2010.
7 47 C.F.R. § 73.807(a)(1). The rule states that the co-channel minimum separation requirement to protect a Class
C2 station such as KMCQ(FM) is 91 kilometers.
8 Local Community Radio Act of 2010, Pub. L. No. 111-371, 124 Stat. 4072 (2011).
9 See Creation of a Low Power Radio Service and Amendment of Service and Eligibility Rules for FM Broadcast
Translator Stations
, Fifth Order on Reconsideration and Sixth Report and Order, 27 FCC Rcd 15402, 15428 n.153
(2012) (“Sixth Report and Order”) (LRCA does not permit balancing of “the benefit of increased noncommercial
educational service” against “the potential for interference”).
10 See Creation of a Low Power Radio Service and Amendment of Service and Eligibility Rules for FM Broadcast
Translator Stations
, Fifth Report and Order, Fourth Further Notice of Proposed Rulemaking, and Fourth Order on
Reconsideration, 27 FCC Rcd 3315, 3320 n.42 (2012) (“Fifth Report and Order”) (“While the LCRA amended
Section 632 [of the 2001 D.C. Appropriations Act], it did not alter that section's requirement that the Commission
‘prescribe protection for co-channels and first- and second-adjacent channels. . . .’”).
11 LCRA, § 3(b)(1); see also Fifth Report and Order, 27 FCC Rcd at 3344.
12 See, e.g., Rural Health Care Support Mechanism, Order, 22 FCC Rcd 20360, 20415 (2007); Federal-State Joint
Board on Universal Service,
Memorandum Opinion and Order, 15 FCC Rcd 7170 ¶ 13 (1999); see also Chrysler
Corp. v. Brown
, 441 U.S. 281, 302 (1979) (“[T]he exercise of quasi-legislative authority by governmental
(continued . . .)
2

BIB’s Petition as moot. We encourage CCB and BIB to evaluate their positions and, if they choose to do
so, re-apply in the currently open LPFM filing window which closes on November 14, 2013.13

Conclusion/Actions

. For the reasons set forth above, IT IS ORDERED that the applications of
Calvary Chapel of Bremerton (File No. BNPL-20010614ADW) and Bainbridge Island Broadcasting (File
No. BNPL-20010601AFS) for Bremerton and Bainbridge Island, Washington, respectively, ARE
DISMISSED.
IT IS FURTHER ORDERED that the Petition to Deny filed by Bainbridge Island Broadcasting
on August 26, 2005, IS DISMISSED as moot.
Sincerely,
Peter H. Doyle
Chief, Audio Division
Media Bureau





(Continued from previous page)
departments and agencies must be rooted in a grant of such power by the Congress and subject to the limitations
which that body imposes.”).
13 See Media Bureau Announces Availability of the Revised FCC Form 318 and the Filing Procedures for October
15 -- October 29, 2013 Low Power FM Filing Window,
Public Notice, 28 FCC Rcd 8854 (MB 2013); see also
Media Bureau Extends Low Power FM Filing Window; Second LPFM Webinar Scheduled for October 24, 2013,
Public Notice, DA 13-2029 (MB rel. Oct. 18, 2013).
3

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