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Tower Trust Investment, Inc., Station WBNK(FM)

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Released: February 21, 2013
Federal Communications Commission
Washington, D.C. 20554
February 21, 2013
In Reply Refer To:

1800B3-MM
DA 13-249
Mark N. Lipp, Esq.
Wiley Rein L.L.P
1776 K Street, N.W.
Washington, DC 20006
In re: Tower Investment Trust, Inc.
WBNK(FM), Pine Knoll Shores, NC
Facility ID No. 170178
File No. BPH-20090626ACC

Petition for Reconsideration

Dear Mr. Lipp:
We have before us a Petition for Reconsideration, filed on June 21, 2010, by Tower Investment
Trust, Inc. (“Tower”), licensee of WBNK(FM), Pine Knoll Shores, North Carolina (“Station”). The
Petition seeks reconsideration of a May 17, 2010, letter decision (“Letter Decision”)1 by the Media
Bureau (“Bureau”) dismissing the captioned minor change application (“Application”). For the reasons
set forth below, we deny the Petition.

Background

. On June 26, 2009, Tower filed the Application. It proposed to modify the
broadcast facilities of the Station by increasing authorized effective radiated power (“ERP”) from 11.5
kilowatts to 21.9 kilowatts. Tower requested processing under Section 73.215 of the Commission’s Rules
(“Rules”). However, the proposed power increase would result in a small amount of prohibited overlap to
third-adjacent channel station, WERO(FM), Washington, North Carolina. As required by Section 73.215,
this overlap is calculated on the basis of WERO(FM)’s maximum class facilities rather than licensed
facilities. Accordingly, Tower requested a waiver of Section 73.215(a) and grant of the Application.
In support of the waiver request, Tower stated that the waiver was warranted to remedy
“seasonal” ducting interference from several first-adjacent channel stations. It claimed that this
interference results in deficient service to Pine Knoll Shores, the Station’s community of license, and to
many communities within the Station’s service contour. Tower did not provide signal strength
measurements of the interfering stations or data on the seasonal periods during which ducting occurs.
Rather, it emphasized that there is no population in the overlap area which consists of water and wetlands
and submitted documents to support its claim that there is no likelihood of future construction or public


1 Letter from Peter H. Doyle, Chief, Audio Division, Media Bureau, to Tower Investment Trust, Inc. (rel. May 17,
2010).

use of land in the overlap area. Finally, it added that no actual overlap would result from the power
increase and that tower limitations likely preclude WERO(FM) from obtaining the maximum class
facilities on which the contour overlap is predicted to occur.2
On May 17, 2010, the Commission issued the Letter Decision denying the waiver request and
dismissing the Application. It stated that Tower’s failure to demonstrate that a directional antenna could
not be used to eliminate the prohibited overlap was “crucial” to the dismissal.3 Moreover, it added that
the Commission will not entertain Section 73.215(a) waiver requests based on the theory that the short-
spaced station cannot construct, or is highly unlikely to construct, maximum class facilities.4 The only
way, noted the Letter Decision, that the Commission might entertain such a request is if WERO(FM)’s
licensee elected to forego contour protections by filing an application to “request” Section 73.215
processing towards the Station.5
Tower filed the Petition on June 21, 2010. It argues, first, that the Letter Decision “ignored”
Tower’s primary basis for the waiver request, namely, that there is no population within the affected area,
that the area is uninhabitable and that based on past case law, such a showing justifies an overlap waiver
without any additional factors.6 It clarifies its position that the ducting interference prompted the waiver,
but was not the justification for the waiver.7 Rather, Tower argues that, based on “well settled” case law,8
waiver is warranted because the overlap occurs in an uninhabitable area with no population.
Tower also questions the cost efficiency of the alternatives suggested in the Letter Decision. It
argues that using a directional antenna is economically infeasible, given the costs of installing and testing
such a system and the uncertainty of whether such a system would effectively ameliorate the effects of
temperature inversion.9 It further claims that asking the licensee of WERO(FM) to forego contour
protection is also economically infeasible because WERO(FM)’s licensee would likely require substantial


2 See File No. BPH-20090626ACC, Attachment 34 (Exhibit 31), page 3.
3 Letter Decision at 2.
4 Id.
5 Id.
6 Petition at 4.
7 Id.
8 Larson-Irwin Enterprises, Memorandum Opinion and Order, 6 FCC 2d 613 (1967) (Sections 73.37 and 73.24(b)
waivers granted because overlap over islands at great distance from location of station being interfered with and
islands have less than 300 people); Collier Broadcasting Co., Memorandum Opinion and Order, 25 FCC 2d 867
(1970) (Section 73.37 waiver granted where overlap over salt water except island with a maximum of fifteen
people); Widener College, Chester, Pennsylvania, Memorandum Opinion and Order, 60 FCC 2d 924 (1976)
(Section 1.573, note 1 waiver granted where all interference from contour overlap was on campus areas without
people); The Board of Trustees of the Leland Stanford Jr. University, Memorandum Opinion and Order 67 FCC 2d
431, 432 (1978) (Section 73.509 waiver granted where contour overlap lies in extremely rugged mountainous terrain
and restrictive zoning “prevents any substantial increase in the present population area”); Board of Education of the
City of Atlanta
, Memorandum Opinion and Order, 82 FCC 2d 125, n.4 (1980) (Section 73.509 waiver granted where
contour overlap covered a negligible area that was mountainous or over salt water).
9 Petition at 4.
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compensation in return for its reduced protection.10 In any event, Tower states, it was unable to discuss
this option with WERO(FM)’s licensee because it “only recently emerged from bankruptcy status.”11

Discussion

. Reconsideration is warranted only if the petitioner sets forth an error of fact or law,
or presents new facts or changed circumstances which raise substantial or material questions of fact that
otherwise warrant reconsideration of the prior action.12 Tower has not met this burden.
The Commission may waive its policies or rules upon a showing of good cause.13 An applicant
seeking a waiver has the burden to plead with particularity the facts and circumstances that warrant such
action.14 The Commission must give waiver requests “a hard look,” but an applicant for waiver “faces a
high hurdle even at the starting gate”15 and must support its waiver request with a compelling showing.16
The Commission may exercise its discretion to waive a policy or rule where the particular facts make
strict compliance inconsistent with the public interest.17 In addition, the Commission may take into
account considerations of hardship, equity, or more effective implementation of overall policy on an
individual basis.18 However, waiver of the Commission’s policies or rules is appropriate only if both (i)
special circumstances warrant a deviation from the general rule, and (ii) such deviation will serve the
public interest.19
Tower first argues that the Letter Decision “ignored” its primary basis for waiver, namely, that
the contour overlap area was uninhabitable and had no population.20 It argues that the Letter Decision
ignored the “well settled” case law cited in support of a waiver grant on this basis.21 While we
acknowledge that the Letter Decision did not specifically discuss the cases cited in Tower’s waiver
request, we find them to be inapposite. Each involves a contour overlap waiver that predates the
enactment of Section 73.215. To find otherwise would defeat the principal purpose of Section 73.215(a),
i.e., to provide applicants with increased flexibility (relative to the Section 73.207 distance separation
criteria) without burdening the Commission with complex, time-consuming and litigable waiver
requests.22 Thus, as the Letter Decision correctly noted, when adopting the rule, the Commission
specifically concluded that Section 73.215 waivers would only be granted in a “very small number of


10 Id. at 5-6.
11 Id. at 6, n.8.
12 See 47 C.F.R. § 1.106.
13 47 C.F.R. § 1.3.
14 See Columbia Communications Corp. v. FCC, 832 F.2d 189, 192 (D.C. Cir. 1987).
15 See WAIT Radio v. FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969), aff’d., 459 F.2d 1203 (1972), cert. denied, 93 S
Ct. 461 (1972) (“WAIT Radio”). See also Thomas Radio v. FCC, 716 F.2d 921, 924 (D.C. Cir. 1983).
16 Greater Media Radio Co., Inc., Memorandum Opinion and Order, 15 FCC Rcd 7090 (1999) (citing Stoner
Broadcasting System, Inc.,
Memorandum Opinion and Order, 49 FCC 2d 1011, 1012 (1974)).
17 Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990) (“Northeast Cellular”).
18 WAIT Radio, 418 F.2d at 1159; Northeast Cellular, 897 F.2d at 1166.
19 Network IP, LLC v. FCC, 548 F.3d 116, 125-128 (D.C. Cir. 2008); Northeast Cellular, 897 F.2d at 1166.
20 Petition at 4.
21 Id. at 5.
22 See Greater Media Radio Company, Inc., 15 FCC Rcd 7090, 7094-95 (1999).
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cases.”23 Notably, Tower cites to no case in which the Commission has granted a Section 73.215 waiver
based on lack of population.
As for the alleged economic infeasibility of the alternatives to waiver suggested in the Letter
Decision, it is well-settled that we do not consider cost efficiencies that simply benefit the broadcaster to
be grounds for waiver.24 Nor can we accept Tower’s speculation concerning demands that the licensee of
WERO(FM) might or might not make in negotiations that have not taken place. Accordingly, we find
that the Letter Decision correctly denied Tower’s waiver request.

Conclusion

. We find that Tower has not set forth an error of fact or law, or presented new facts
or changed circumstances which raise substantial or material questions of fact that otherwise warrant
reconsideration of the Letter Decision.
In light of the above discussion, and pursuant to Section 309(k) of the Act, and Sections 0.61 and
0.283 of the Rules,25 the Petition for Reconsideration filed on June 21, 2010, by Tower Investment Trust,
Inc., IS DENIED.
Sincerely,
Peter H. Doyle
Chief, Audio Division
Media Bureau
cc: Tower Investment Trust, Inc.


23 Letter Decision at 2, citing Amendment to Part 73 of the Commission’s Rules to Permit Short-Spaced Station
Assignments by Using Directional Antennas
, 6 FCC Rcd 5356, 5360 n.27 (1991).
24 See, e.g., Chicago Newsweb Corporation/WNDZ, Inc., Letter, 24 FCC Rcd 10852 (MB 2009) (insofar as
requested waiver will not enhance the public interest but is intended to principally benefit the licensee financially,
there is no good cause showing for a waiver); Radio Redentor, Inc., 14 FCC Rcd 17754, 17755 (1999); and Maines
Broadcasting, Inc
., 8 FCC Rcd 5501, 5502 (1993) (same).
25 47 U.S.C. § 309(k) and 47 C.F.R. §§ 0.61, 0.283.
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