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New NCE FM Ranchos de Taos, NM

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Released: September 9, 2011

Federal Communications Commission

Washington, D.C. 20554

September 9, 2011

DA 11-1520

In Reply Refer to:
1800B3-IB
Released: September 9, 2011
Ernest T. Sanchez, Esq.
The Sanchez Law Firm
2300 M Street, N.W., Suite 800
Washington, D.C. 20037
Matthew H. McCormick, Esq.
Fletcher, Heald & Hildreth, PLC
1300 North 17 Street, 11th Floor
Arlington, VA 22209
RE:
New Noncommercial Educational FM
Ranchos de Taos, New Mexico
File No. BNPED-20071016AJM
Facility ID 173334
NCE Group 388

Petition to Deny

Dear Counsel:
We have before us a Petition to Deny ("Petition") by the Board of Regents of New
Mexico Highlands University ("Regents") which contests the Media Bureau's ("Bureau")
tentative selection of Cultural Energy ("CE") to receive a construction permit for a new
noncommercial education ("NCE") FM station at Ranchos de Taos, New Mexico. Regents
argues: (1) that the Bureau's dismissal of Regents' mutually exclusive application was prejudiced
by an allegedly abusive filing by CE; and (2) that under a Longley-Rice analysis, CE would not
qualify for the preference which led to CE's selection. For the reasons set forth below, we affirm
our selection of CE and grant the application.

Background.

CE's proposal to construct a new station at Ranchos de Taos, New Mexico
was mutually exclusive with Regents' application to construct a new station at Espanola, New
Mexico. Their applications, along with several others, were designated as NCE Group 388, and
analyzed in a December 15, 2009, Bureau Order. 1 The Bureau tentatively selected CE on the
principle of "fair distribution of service."2 An NCE FM applicant is eligible to receive a fair


1 Threshold Fair Distribution Analysis of 22 Groups, Memorandum Opinion and Order, 24 FCC Rcd 14531
(MB 2009) ("Order").
2 Specifically, when conflicting applications propose service to different communities, the Bureau
undertakes a threshold analysis pursuant to Section 307(b) of the Communications Act of 1934 as amended
See 47 U.S.C. 307(b). If more than one applicant is eligible for a preference, the Bureau considers
whether any would provide a first NCE aural service to at least 5,000 more potential listeners than the next
best proposal for a different community. 47 C.F.R. 73.7002(b). If that first step is not decisive, the
Bureau considers aggregated first and second service and applies the same 5,000-person differential. Id.

distribution preference if it would provide, within the proposed station's 60 dBu contour, a first or
second reserved band channel NCE aural service to at least ten percent of the population (in the
aggregate), provided that the population served is at least 2,000 people.3
Several applicants in Group 388, including CE and Regents, claimed fair distribution
preferences. Regents' first service claim was the largest, but the Bureau found the claim
defective because Regents had failed to consider outstanding authorizations for other NCE
stations.4 Regents' proposal, in fact, would have provided no first service at all and it was
therefore eliminated. CE had raised identical concerns about Regents' proposal in a July 23,
2008, document styled as an informal objection ("Objection"), but the Order made no mention of
that filing. CE was chosen as tentative selectee, and Regents filed its timely Petition.

Discussion.

To assess the merits of a petition to deny, a two-step analysis is required.5
First, the petition must make specific allegations of fact sufficient to demonstrate that the
petitioner is a party in interest and that grant of the application would be prima facie inconsistent
with the public interest, convenience, and necessity.6 If the petition meets this threshold
requirement, the Bureau examines all of the material before it to determine whether there is a
substantial and material question of fact calling for further inquiry and requiring resolution in a
hearing.7 If no such question is raised, the Bureau will deny the petition and grant the application
if it concludes that such grant otherwise serves the public interest, convenience, and necessity.

CE's Alleged Role in the Bureau's Rejection of Regents' Fair Distribution Claim.

Regents believes that it would have been named tentative selectee if not for CE's Objection,
which Regents considers an abusive and disqualifying filing. Regents' argument turns on whether
CE "misrepresented" its filing as an objection when, in Regents' view, the filing was a
"disguised" petition to deny.8 Regents contends that CE impermissibly filed the Objection at a
time when such a filing might prejudice the Bureau's comparative analysis, in conflict with
Section 73.7004(a) of the Rules which specifies that NCE petitions to deny are to be filed
following public notice of a tentative selection. 9
We find that Regents fails to make a prima facie case that abuse by CE or prejudice by
the Bureau led to dismissal of Regents' application.10 Our Rules explicitly permit the filing of




3 See 47 C.F.R. 73.7002(b).
4 Id. at 14538.
5 See Astroline Communications Co. v. FCC, 857 F. 2d 1556, 1561 (D.C. Cir. 1988).
6 Id.
7 47 U.S.C. 309(d)(2).
8 Petition at i and 5.
9 47 C.F.R. 73.7004(a). See also 47 C.F.R. 73.3584(a).
10 Its arguments rest entirely on negative inferences drawn from the timing and title of a CE filing and from
the Bureau's silence as to that pleading's existence. Although Regents cites many cases which set forth
Commission standards for misrepresentation and lack of candor, Regents has not shown any such
misconduct by CE. See, e.g. FCC v. WOKO, Inc., 329 U.S. 223 (1946); Contemporary Media v. FCC, 214
2

informal objections at any time prior to application grant and, thus, the mere timing of an
objection does not indicate any abuse on the part of the objector.11 Nor can the Bureau be
considered prejudiced by receipt of a permissible filing. Although it is true that the Bureau
generally does not begin to review oppositional pleadings in NCE comparative proceedings until
a tentative selectee is announced, the reason for that practice is unrelated to potential prejudice.
Rather, as Regents acknowledges, it would simply be wasteful and inefficient to consider
arguments against non-prevailing applicants.12
Moreover, CE's Objection played no role in the Bureau's decision. Regents was
eliminated pursuant to procedures that the Bureau routinely follows in NCE cases that are
potentially resolved on fair distribution principles. Specifically, the Bureau independently
verifies that potentially decisive fair distribution claims are reasonable by ruling out any large or
obvious applicant errors.13 In this case, Regents' claim was based on a large, readily apparent
applicant error. Thus, it is not surprising that the Bureau, without considering or mentioning
CE's Objection, discovered the same error as CE. Regents makes no argument that its original
claim was accurate and contests only the manner in which it believes the Bureau learned of the
flaw. Accordingly, we reject Regents' arguments that CE lacked candor and that Regents was
prejudiced by the timing of the filing of the CE Objection.

CE's Fair Distribution Claim.

All applicants in Group 388 correctly relied on the
standard signal coverage methodology as set forth in Section 73.313 of our Rules,14 to compute
their fair distribution claims. This methodology requires applicants to use a field strength chart
based on average terrain.15 Although this method does not replicate coverage exactly,16 it
provides a uniform method of calculation that is sufficiently accurate for most licensing purposes.




F.3d 187 (D.C. Cir. 2000); San Francisco Unified School District, 19 FCC Rcd 13326 (2004); Fox
Television Stations, Inc.,
10 FCC Rcd 8452 (1995); Fox River Broadcasting, Inc., 93 FCC 2d 127 (1983).
11 See 47 C.F.R. 73.3587. See, e.g., Order, 24 FCC Rcd at 14537 (prematurely-filed "Petition to
Dismiss" in another group not considered but would be held in abeyance for later consideration as an
informal objection in the event that the filing party did not submit a petition to deny).
12 Petition at 4.
13 In this manner, the Bureau maintains the efficiency as well as integrity of the process by accepting most
certifications at face value, while giving no credence to patent errors by potential selectees. Finer flaws or
other problems with a tentative selectee's Section 307(b) claim can be brought to our attention in the
petition to deny process. Regents' position that the Bureau should have named Regents tentative selectee
based on its overstated and flawed fair distribution claim is contrary to the Commission's non-reliance
upon overstated NCE fair distribution claims in comparative analyses. E.g., Comparative Consideration of
32 Groups,
Memorandum Opinion and Order, 25 FCC Rcd 5013, 5010, 5022, 5034 (2010).
14 See 47 C.F.R. 73.313. See also FCC Form 340, Instructions, Section III, Questions 1 and 2. NCE
applicants also use the standard procedures to predict whether a proposed station's contours would overlap
the contours of co-owned stations for purposes of claiming NCE points for local diversity of ownership.
15 See 47 C.F.R. 73.333, Figure 1.
16 Because of the limited length (3 to 16 kilometers) of the radials used to determine antenna height above
average terrain, the Commission's standard propagation methodology does not accurately account for all
terrain effects. See 1998 Biennial Regulatory Review, Streamlining of Radio Technical Rules, Notice of
Proposed Rulemaking, 13 FCC Rcd 14849, 14863 (1998), subsequent history omitted.
3

Pursuant to this standard method, CE claimed that it would provide a first NCE aural service to
10,287 people, which is 11.4 percent of the overall 90,523 people it proposed to serve. CE's
claim, therefore, satisfied a 10 percent/2,000 person threshold required for receipt of the fair
distribution preference based on first NCE service.17
In contrast, Regents urges the Commission to recalculate CE's proposed coverage using a
non-standard propagation model known as Longley-Rice, which is designed to account for
irregular terrain.18 Regents argues that there is "extreme terrain" within CE's proposed service
area and submits a supporting 8-page engineering study. Under the Regents Longley-Rice
analysis, CE would provide a first service to only 5,685 people, which is substantially less than
10 percent of 122,688 people in the revised service area put forth by Regents, and therefore below
the threshold needed to qualify for a fair distribution preference based on first NCE service.19
We find that it would be inappropriate to permit objectors to use alternate propagation
models to negate a comparative fair distribution preference for which an NCE applicant would
otherwise qualify and therefore reject Regents' attempt to do so here. In reaching this conclusion,
we are guided by the Commission's decision to bar the use of alternate showings in
circumstances when an applicant relies on the standard prediction methodology to demonstrate
compliance with service coverage rules.20 Moreover, we note that the Commission has never
countenanced the use of alternate propagation models to resolve comparative claims of mutually
exclusive NCE applicants.


17 See 47 C.F.R. 73.7002(b).
18 The Longley-Rice method is an irregular terrain model named for Anita Longley & Phil Rice, who
devised the model in 1968. See Longley, A.G. and Rice, P.L., Prediction of Tropospheric Radio
Transmission Loss Over Irregular Terrain, A Computer Method1968
, ESSA Technical Report ERL 79
ITS 67, Institute for Telecommunications Sciences (1968). It predicts radio field strength based on the
elevation of terrain between the transmitter and specific reception points. Its algorithm and source code are
maintained by the Institute for Telecommunications Sciences, National Telecommunications Information
Administration of the U.S Department of Commerce at http://flattop.its.bldrdoc.gov/itm.html. See also
OET Bulletin No. 69, Longley-Rice Methodology for Evaluating TV Coverage and Interference (2004)
available at http:// www.fcc.gov/oet/info/documents/bulletins/#69.
19 We note that first service was only partially decisive. The group was resolved on the applicants'
aggregated first and second service claims. CE claimed that it would provide aggregated first and second
NCE service to a population of 47,006, which is 52 percent of the 60 dBu service contour population.
Although Regents' Longley-Rice computations acknowledge that CE would provide cognizable first and
second NCE service in the aggregate, the smaller first service claim would arguably eliminate CE before
that stage of analysis.
20 See, Shaw Communications, Inc., Memorandum Opinion and Order, 24 FCC Rcd 5852, 5853 (2009) (not
considering a Longley-Rice study in a petition to deny that sought to question the coverage of an FM
station). See also Lee G. Petro Esq., Letter, 25 FCC Rcd. 4486 (MB 2010) (rejecting petitioner's non-
prima facie case for use of Longley-Rice method); Lee Shubert, Esq., Letter, 10 FCC Rcd 3159, 3160
(MMB 1995) (rejecting attempt to use Longley-Rice calculations to disqualify an applicant that had
demonstrated compliance with the multiple ownership rules using the Commission's standard calculation
methods).
4

Permitting the use of Longley-Rice studies in an NCE comparative context would be
especially inappropriate. The Commission has crafted a streamlined and simplified NCE
comparative process because NCE entities can least afford complex undertakings.21
Supplemental analyses such as Longley-Rice, however, are "inherently more complex than the
standard contour prediction method and the underlying assumptions are often open to varying
interpretations."22 Relying on Longley-Rice showings for some, but not all applicants, would
also be inconsistent with the Commission's desire for uniform standards of NCE comparison. 23
In establishing fair distribution standards, the Commission stated "of overall concern to us in this
area is that we are comparing applications that use the same data."24 Thus, the population
component of NCE fair distribution analyses is calculated as it existed on the snap-shot date of
application, although it might be more accurate to require updates in response to new census data
and population shifts. Similarly, although consideration of actual terrain can be more accurate
than standard assumptions, any perceived benefit would be outweighed by the resulting
comparison of "apples to oranges" among applications using different methods. For example,
the analysis put forth by Regents applies a Longley-Rice analysis only to CE's application and
asks us to compare that data to standard computations for Regents and other applicants.25
Accordingly, we conclude that Regents' Petition provides no basis for reconsidering our selection
of CE on fair distribution principles.

Ordering Clause.

Accordingly, the Petition to Deny by the Board of Regents of New
Mexico Highlands University IS DENIED and its application for a new station at Espanola, New
Mexico (File No. BNPED-20071019AFT) IS DISMISSED. The application of Cultural


21 See Reexamination of Comparative Standards, Report and Order, 15 FCC Rcd 7386, 7389, 7423 (2000)
(subsequent history omitted).
22 See Amendment of Parts 73 and 74 of the Commission's Rules to Permit Certain Minor Changes in
Broadcast Facilities Without a Construction Permit,
Report and Order, 12 FCC Rcd 12371,12403 (1997)
(applicants are "not required to provide a supplemental analysis if the contour as predicted by the standard
contour prediction method covers the community of license. . . .").
23
We note that the Media Bureau has allowed applicants to reserve certain non-reserved-band channels
for NCE purposes by using alternative propagation methods in Section 307(b) showings, but only after
providing an opportunity for notice and comment, and developing a process to ensure that any applicant
seeking to use the channel at issue would be subject to the same standards. See Amendment of Section
73.202(B), Table of Allotments, FM Broadcast Stations (Hemet, California)
, Notice of Proposed
Rulemaking, 22 FCC Rcd 10311 (MB 2007); Report and Order, 22 FCC Rcd 19296 (2007).
24 See Reexamination of Comparative Standards, Report and Order, Memorandum Opinion and Order, 16
FCC Rcd 5074, 5083 (2001) (subsequent history omitted).
25 See Lee G. Petro, Esq., Letter, 25 FCC Rcd 14362 (MB 2010) (Media Bureau makes independent
evaluation of fair distribution claims to ensure valid "apples-to-apples" comparison between competing
applicants).
5

Energy for a new station at Ranchos de Taos, New Mexico (File No. BNPED-20071016AJM) IS
GRANTED conditioned upon compliance with Section 73.7002(c), which sets forth a period of
four years of on-air operations substantially as proposed.
Sincerely,
Peter H. Doyle
Chief, Audio Division
Media Bureau
6

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