FM Change of Community, Blanca to Avondale, Colorado
Federal Communications Commission
Washington, D.C. 20554April 26, 2013
Evan D. Carb, Esq.
Law Offices of Evan D. Carb, PLLC
1200 New Hampshire Avenue, N.W., Suite 800
Washington, DC 20036
Donald E. Martin, Esq.
P.O. Box 8433
Falls Church, Virginia 22041
New FM, Avondale, Colorado
File No. BNPH-20110602AAW
Informal ObjectionDear Counsel:
This letter refers to the long-form application (the “Application”), as amended, of Alex Media,
Inc, (“Alex Media”), winning bidder in Auction 91 for FM Channel 249C2 at Blanca, Colorado, to
implement its winning bid on an upgraded channel at Avondale, Colorado.1 We also have before us
Comments and Informal Objection (the “Objection”), filed on October 3, 2011, by Radio 74 Interationale
(“Radio 74”), permittee of Station KSJL(FM), Strasburg, Colorado, as well as various related pleadings.2
For the reasons discussed below, we deny the Objection in part and direct Alex Media to amend the
Background.The Application was filed pursuant to Sections 73.3573(a)(i) and (ii) of the
Commission’s Rules,3 which permit a winning auction bidder to file a minor amendment to its proposal to
specify a new community of license or a different class channel without affording other parties an
opportunity to file a competing expression of interest. The Application requests an upgrade and change of
community of license from Channel 249C2 at Blanca to Channel 249C1 at Avondale, Colorado, at a new
transmitter site. In support of the Application, Alex Media alleges that the proposal satisfies the
requirements for changing a station’s community of license because (1) the proposed use of Channel
249C1 at Avondale is mutually excusive with Channel 249C2 at Blanca; (2) Blanca will not be deprived of
1 See File No. BNPH-20110602AAW; Public Notice, 76 Fed. Reg. 46294 (Aug. 2, 2011) (establishing comment
deadline of October 3, 2011).
2These pleadings include (1) Alex Media’s February 17, 2012, Opposition to Informal Objection (“Opposition”);
(2) Alex Media’s December 6, 2012, letter request for an extension of time (“Extension Request”) to respond to a
November 7, 2012, staff request for supplemental information; (3) Alex Media’s December 21, 2012, amendment
to the Application (the “Amendment”); and (4) Radio 74’s January 7, 2013, Response to Supplemental Information
(“Response”). We hereby grant Alex Media’s unopposed Extension Request.
3 47 C.F.R. § 73.3573(a)(i)-(ii).
its only local service as the Blanca station is unbuilt; and (3) the provision of a first local service to the
larger community of Avondale (population 754) under FM Priority 34 will result in a preferential
arrangement of allotments over the initiation of a first local service at the smaller community of Blanca
(population 391).5 Alex Media further contends that the proposed reallotment would not violate the
Commission’s Rural Radio6 policies that restrict the relocation of AM or FM stations from smaller
communities to larger Urbanized Areas because the proposed station will not, and could not through a
minor modification, place a 70 dBu contour over 50 percent or more of any Urbanized Area.7
In its Objection, Radio 74 alleges that the Application should be denied because (1) it violates the
Commission’s prohibition against removing a community’s sole local service even though the station is
unbuilt; (2) it contravenes the Commission’s recently adopted ban8 on the creation of “gray” loss area9 as
the Application acknowledges that 87 persons in an area of 478 sq. kilometers will be reduced from two to
one aural service;10 and (3) it triggers the Commission’s Rural Radio policies as there is a site from which
the station could cover more than 50 percent of the nearby Pueblo, Colorado, Urbanized Area, if an
alternative propagation methodology is employed, and that under these circumstances, the proposed
reallotment is not a first local service to Avondale but an additional station for the Pueblo Urbanized
In its Opposition, Alex Media contends that the Objection should be denied because (1) the
Application does not violate the prohibition against removing a community’s sole local service as the
policy does not apply to unbuilt stations; (2) the Second R&O’s ban on the creation of “gray” loss areas
only pertains to cases under Priority 4, and not to cases, like the instant one, under higher allotment
priorities; (3) even if the ban were applicable, it is not violated since the relocation of an unbuilt station
does not create an actual “gray” loss area but perpetuates an existing “gray” area,12 and that, in any event,
4 The FM allotment priorities are (1) first fulltime aural service; (2) second fulltime aural service; (3) first local
service; and (4) other public interest matters. Co-equal weight is given to Priorities (2) and (3). See Revision of FM
Assignment Policies and Procedures, Second Report and Order, 90 FCC 2d 88 (1982).
5 See File No. BNPH-20110602AAW, Exhibit 35, at 1-2.
6 See Policies to Promote Rural Radio Service and to Streamline Allotment and Assignment Procedures, Second
Report and Order, First Order on Reconsideration, and Second Further Notice of Proposed Rule Making, 26 FCC
Rcd 2556 (2011) (subsequent history omitted) (“Second R&O”). When a station’s proposed community is located in
an urbanized area or the station could, through a minor modification application, cover at least 50 percent of an
urbanized area, the Commission established a rebuttable presumption that the application should be treated, for
Section 307(b) purposes as a proposal to serve the urbanized area rather than the named community of license. Id.
at 2572 ( ¶ 30).
7 See File No. BNPH-20110602AAW, Exhibit 35, at 2-3.
8 See Second R&O, 26 FCC Rcd 2556, 2577 ( ¶ 39).
9 A “gray” area is an area in which there is only one fulltime aural reception service. See Cheyenne, Wyoming, and
Gering, Nebraska, Report and Order, 15 FCC Rcd 7528, 7530 n.8 (MMB 2000) (“Cheyenne”).
10 See File No. BNPH-20110602AAW, Exhibit 35, at 8.
11 See Radio 74’s Comments and Informal Objection, Exhibit 1, utilizing a Longley-Rice study.
12 In support of this position, Alex Media cites Farmington and Gallup, New Mexico, Report and Order, 11 FCC
Rcd 2357, 2360 (MMB 1996), recon. denied, Memorandum Opinion and Order, 14 FCC Rcd 18983 (MMB 1999).
(“Farmington”). A “white” area is an area in which there are no full-time aural reception services. See Cheyenne,
15 FCC Rcd at 7530 n.8.
the loss area is de minimis; and (4) an objecting party is not permitted to rely upon an alternative
propagation methodology for the purpose of determining the extent of coverage of neighboring Urbanized
Areas where an applicant has demonstrated compliance using the standard methodology.
On October 12, 2012, the Commission released the Second Order in the Rural Radio proceeding,
which, inter alia, modified the technical standards for calculating gain and loss areas of service and the
number of reception services in the gain and loss areas when radio stations change their communities of
license.13 The Commission allowed parties with pending change of community applications as of the
release date of the Second Order the option of amending their applications to conform to the clarified
procedures or to rely upon the reception service counts in their previously filed technical showings.14
Pursuant to the Second Order, the staff requested supplemental information from Alex Media on
November 7, 2012.15
In its Amendment, Alex Media updates the population in the “gray” loss area based on 2010
Census data but states that it will rely on the previous methodology for calculating the gain and loss areas
and the number of reception services in the gain and loss areas as permitted by the Commission.16 Based
upon the more current data, Alex Media states that there would be an increase in the population of the
“gray” area to 132 persons.17 However, Alex Media reiterates that the creation of this “gray” loss area
should not prevent grant of its Application for the reasons previously stated in its Opposition.
In its Response, Radio 74 argues that (1) a better reading of the Second R&O indicates that the bar
on the creation of “white” or “gray” loss areas applies to FM Priority 2, and not just Priority 4; and (2) the
Application violates the bar on the creation of “gray” loss area because the Commission did not limit the
bar with any references to unbuilt facilities or de minimis figures. Accordingly, Radio 74 contends that the
Application should be denied.
Discussion.Under Section 309(d) of the Communications Act of 1934, as amended,18 informal
objections, like petitions to deny, must provide properly supported allegations of fact that, if true, would
establish a substantial and material question of fact that grant of the application would be prima facie
inconsistent with the public interest, convenience and necessity.19
Removal of Sole Local Service. We find that Radio 74 has not raised a substantial and material
question of fact regarding whether the Application violates the Commission’s prohibition against the
13 See Policies to Promote Rural Radio Service and to Streamline Allotment and Assignment Procedures, Second
Order on Reconsideration, 27 FCC Rcd 12829, 12836-40 (2012) (“Second Order”) ( ¶¶ 14-17).
14 Id. at 12840 n.70.
15 See Letter to Evan D. Carb, Esq., Ref. 1800B3 (Nov. 7, 2012) (“RSI”).
16 See File No. BNPH-20110602AAW, Amendment of December 21, 2012, Exhibit 36, Engineering Supplement at
17 Id. at 2.
18 47 U.S.C. § 309(d) (the “Act”).
19 See, e.g., WWOR-TV, Inc., Memorandum Opinion and Order, 6 FCC Rcd 193, 197 n.10 (1990), aff'd sub nom.
Garden State Broadcasting L.P. v. FCC, 996 F.2d 386 (D.C. Cir. 1993), reh’g denied (Sept. 10, 1993); Area
Christian Television, Inc., Memorandum Opinion and Order, 60 RR 2d 862, 864 (1986) (informal objection must
contain adequate and specific factual allegations sufficient to warrant the relief requested).
removal of a community’s sole local service. Although Radio 74 acknowledges that the staff does not
consider unbuilt stations to be “existing services” that invoke this policy,20 Radio 74 claims that there is no
Commission level authority for this proposition. We disagree. The Commission has explicitly recognized
that holders of unbuilt construction permits are “considered eligible to file for a change of community of
license without regard to the general prohibition on removal of a community’s only operation on-air
service (first local) because unbuilt stations do not provide such service.”21 This distinction between “on-
air” stations and unbuilt facilities has been consistently followed, and Radio 74 has not cited any case to
the contrary. Because the Application proposes the reallotment of an unbuilt station, the prohibition
against removal of a community’s sole local service does not apply.
Urbanized Area Coverage. Next, we agree with Alex Media that Radio 74 is not permitted to use
an alternative propagation methodology, such as Longley-Rice, for the purpose of demonstrating the extent
of potential coverage of a nearby Urbanized Area. It is well established that where an applicant
demonstrates compliance with the Commission’s Rules utilizing the standard prediction method, an
opponent of the application may not rely upon alternative prediction methods to rebut the showing.22 The
reason for this approach is that “[s]upplemental analyses are inherently more complex than the standard
contour prediction method and the underlying assumptions are often open to varying interpretations.”23 In
this case, Alex Media has submitted an engineering showing, using the Commission’s standard prediction
methodology, that the proposed station will not, and could not through a minor modification, place a 70
dBu contour over 50 percent or more of any Urbanized Area.24 A staff engineering analysis confirms this
result.25 Because the proposed facility could not cover 50 percent or more of the Pueblo Urbanized Area,
the Application does not invoke the urbanized area service presumption set forth in Rural Radio.
Gray Area. As pointed out by Radio 74, we cannot grant the Application, as currently filed,
because it creates an impermissible “gray” loss area. In the Second R&O, the Commission recently
established “an absolute bar to any facility modification that would create white or gray area.”26 Alex
20 See Radio 74’s Comments and Informal Objection at 2.
21 See Potts Camp and Saltillo, Mississippi, Memorandum Opinion and Order, 16 FCC Rcd 16116, 16120 (2001) (¶
9), aff’d, sub nom. Sisk v. FCC, 2003 WL 21076921 (D.C. Cir.). This case further states that in adopting the
prohibition on removal of a sole local service, “. . . the Commission specifically defined existing service for change
of community of license cases as that provided by stations that were on-the-air and on which their listeners had
come to rely.” Id. at 16121, citing Modification of FM and TV Authorizations to Specify a New Community of
License, Memorandum Opinion and Order, 5 FCC Rcd 7094, 7097 (1990).
22 See, e.g., Shaw Communications, Inc., Memorandum Opinion and Order, 24 FCC Rcd 5852 (2009) (¶ 5) (not
considering a Longley Rice study in a petition to deny that sought to question the coverage of an FM station); Lee
Shubert, Esq., Letter, 10 FCC Rcd 3159, 3160 (MMB 1995) (rejecting an attempt to apply Longley-Rice
calculations to disqualify an applicant that had demonstrated compliance with the multiple ownership rules using the
Commission’s standard calculation methods).
23 See Amendment of Parts 73 and 74 of the Commission’s Rules to Permit Certain Minor Changes in Broadcast
Facilities Without a Construction Permit, 12 FCC Rcd 12371, 12403 (1997) (¶ 71). Further, “[b]ecause
supplemental showings are both complex and unique to each case, staff analyses require engineering review by
propagation experts which places a substantial demand on our finite resources.” Id., at 12402 n.53.
24 See File No. BNPH-20110602AAW, Exhibit E35, at 2.
25 Specifically, the staff engineering study determined that the proposed station could cover approximately 31% of
the Pueblo Urbanized Area with a 70 dBu signal.
26 Second R&O, 26 FCC Rcd at 2577 ( ¶ 39).
Media contends that this bar applies only to cases involving FM Priority 4, and not the higher allotment
priorities. We disagree. While the prohibition on creating “white” or “gray” area is contained in a
paragraph of the Second R&O that also discusses Priority 4 showings, the sentence establishing the bar
contains no language limiting its applicability to Priority 4 cases.27 Indeed, we have already interpreted
this bar as applying to the higher allotment priorities.28 Further, to the extent that Alex Media alleges that,
under Farmington, the bar is not violated because the relocation of the unbuilt allotment will perpetuate a
pre-existing “gray” area, as opposed to creating a new “gray” area, we find that Farmington, a television
case, has been superseded by the Commission’s Second R&O with respect to radio stations. Moreover,
Farmington is also distinguishable because there was another vacant VHF television allotment in Gallup,
New Mexico, that would provide coverage to the “white” loss area created by the relocation of an unbuilt
station.29 Unlike Farmington, there is no current vacant allotment that would provide service to the
“gray” loss area in the instant case. Finally, we reject Alex Media’s contention that a “gray” loss
population of 132 persons is de minimis.30 The Commission’s imposition of an absolute bar on the
creation of “white” or “gray” loss areas in change of community cases makes the size of the loss area
immaterial and supersedes prior decisions to the contrary. Under these circumstances, we cannot grant
the Application, as currently filed.
Conclusion.Accordingly, for the reasons discussed above, we deny the Objection in part and
direct Alex Media to amend the Application to remedy the creation of a “gray” loss area within thirty (30)
days of this letter. 31 Radio 74 may submit a response to the amendment within fifteen (15) days.
Peter H. Doyle
Chief, Audio Division
28 See, e.g., Karl Lieber, Letter, 27 FCC Rcd 2424 (MB 2013) (finding Priority 1 concerns to be dispositive and
dismissing a minor modification application to change a station’s community of license to provide a Priority 3 first
local service because it would create a “white” loss area of 1,586 persons in violation of the Commission’s ban).
29 See Farmington, 11 FCC Rcd at 2360 ( ¶ 20).
30 Alex Media calculated a 132 person “gray” loss using an old methodology. See Greenup, Kentucky, and Athens,
Ohio, Memorandum Opinion and Order, 6 FCC Rcd 1493 (1991). We conducted our own engineering analysis to
determine whether any “white” or “gray” loss exists under a new methodology required for applications submitted
after the release of the Second Order on October 12, 2012. See Second Order, 27 FCC Rcd at 12836-40, Our staff
study reveals that the Application would create a “gray” loss area of 832 sq. kilometers containing 286 persons.
31 See Able Radio Corporation and Entravision Holdings, LLC, Letter, 26 FCC Rcd 16161 (MB 2011) (permitting
an FM auction winner to amend its long-form application to specify a different transmitter site because, with respect
to auction winners, the Commission has established a more lenient approach for processing defective applications).
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