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Waiver Request, FM Translator Stations, Seattle, Washington

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Released: April 24, 2013
Federal Communications Commission
Washington, D.C. 20554

April 24, 2013

DA 13-860

In Reply Refer to:
1800B3-SS
Released: April 24, 2013
Sam-Sno Educational Media
c/o Ms. Jennifer Diane Reitz
470 Mt. Defiance Circle, SW
Issaquah, WA 98027

In re: NEW FM TRANSLATOR STATION,

McCleary, WA

Facility ID No. 144097
File No. BNPFT-20030312BEX

NEW FM TRANSLATOR STATION,
North Olympia, WA

Facility ID No. 149094
File No. BNPFT-20030314CJX

Request for Waiver

Dear Ms. Reitz:
This letter concerns: (1) the March 12 and 14, 2003, applications (“McCleary Application” and
“North Olympia Application,” respectively) filed by Sam-Sno Educational Media (“Sam-Sno”) for
construction permits for new FM Translator Stations at McCleary and North Olympia, Washington; and
(2) Sam-Sno’s January 10, 2013, request for waiver (“Waiver Request”) of the provisions in the
Commission’s Fifth Order on Reconsideration1 prohibiting contour overlap between two FM translator
applications filed by the same licensee in the same market. For the reasons set forth below, we deny the
Waiver Request, dismiss the McCleary Application, and continue processing the North Olympia
Application.

Background

. The McCleary and North Olympia Applications were filed in the March 2003 FM
non-reserved band translator (Auction 83) filing window.2 Both are in the “Appendix A” market of
Seattle, Washington, as specified in the Fourth Report and Order3 in which the Commission adopted
market-specific FM translator application processing policies designed to effectuate the Local

1 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 (2012) (“Fifth
Order on Reconsideration
”).
2 See FM Translator Auction Filing Window and Application Freeze, Public Notice, 18 FCC Rcd 1565 (MB/WTB
2003). The filing window was subsequently extended to March 17, 2003. FM Translator Auction Filing Window
and Application Freeze Extended to March 17, 2003
, Public Notice, 18 FCC Rcd 3275 (MB/WTB 2003).
3 Creation of a Low Power Radio Service and Amendment of Service and Eligibility Rules for FM Broadcast
Translator Stations
, Fourth Report and Order and Third Order on Reconsideration, 27 FCC Rcd 3364 (2012)
(“Fourth Report and Order”).

Community Radio Act.4 In the Fifth Order on Reconsideration, the Commission decided that it would
allow applicants to prosecute a maximum of three applications in an “Appendix A” market, provided that:
(1) the protected (60 dBµ) contour (calculated in accordance with Section 74.1204(b) of the
Commission’s Rules (the “Rules”)5 of a proposed translator station may not overlap the protected (60
dBµ) contour of any other translator application filed by that applicant in Auction 83 or any translator
authorization held by that applicant as of December 4, 2012; and (2) the translator application may not
preclude grant of a future low power FM (“LPFM”) application in the “grid” for that market.6 On
January 10, 2013, in response to a Media Bureau Public Notice7 that, inter alia, required applicants
subject to the per-market cap to submit certain showings during the window opened for these filings,
Sam-Sno requested the dismissal of five of its applications8 and that the McCleary and North Olympia
Applications be processed pursuant to a waiver of the overlap provision.
In its Waiver Request, Sam-Sno contends that the overlap between the McCleary and North
Olympia Applications is de minimis.9 Specifically, Sam-Sno argues that its two proposed FM translator
stations are intended to serve different geographical areas and the overlap encompasses only 1.4 square
kilometers, containing a population of approximately 761 persons.10 Sam-Sno claims that, although no de
minimis
overlap threshold is stated in the Fifth Order on Reconsideration, the Commission “has set a
precedent in other broadcast decisions that indicates that some leeway could be granted in this case for the
public good and necessity.”11 Finally, Sam-Sno requests that the North Olympia Application be
processed and that the McCleary Application be dismissed if we determine that it is impossible to allow
both “Appendix A” applications to be processed.12

Discussion

. Section 1.3 of the Rules expressly provides that any provision of the Rules may be
waived by the Commission in whole or in part, for good cause shown.13 An applicant seeking a waiver

4 Pub. L. No. 111-371, 124 Stat. 4072 (2011).
5 See Fifth Order on Reconsideration, 27 FCC Rcd at 15410 and at 15421; see also 47 C.F.R. § 74.1204(b).
6 See Fifth Order on Reconsideration, 27 FCC Rcd at 15410 and at 15421.
7 See Media Bureau Announces January 10 - January 25, 2013 Filing Window for Auction 83 FM Translator
Application Selections and Caps Showings
, Public Notice, 27 FCC Rcd 15961 (MB 2012).
8 Sam-Sno requested the dismissal of the following applications: File Nos. BNPFT-20030317ACC, Newcastle;
BNPFT-20030317ABW, Vashon; BNPFT-20030317AAS, Manzanita; BNPFT-20030317ACA, Hunt’s Point; and
BNPFT-20030312BFM, Bordeaux, all in Washington state. The staff dismissed these applications on February 5,
2013. See Media Bureau Dismisses FM Translator Form 349 “Tech Box” Proposals and Releases Applicant
Selection Lists and Caps Showings Filings,
Public Notice, DA 13-152 (rel. Feb. 5, 2013).
9 Waiver Request at 1.
10 For the North Olympia Application, Sam-Sno claims that the 1.4 square kilometers overlap is 0.2% of its 561.2
square kilometers 60 dBµ contour, and its overlap population of 761 is 0.5% of its full contour population of
156,684. For the McCleary Application, Sam-Sno claims that the overlap constitutes 0.3% of its 495.8 square
kilometers 60 dBµ contour, and the overlap population is 9% of its full contour population of 8,207. Id.
11 Id. Sam-Sno cites no cases supporting this assertion.
12 Id. Sam-Sno also asserts that no new LPFM stations would be precluded by the grant of either the McCleary or
North Olympia Applications. In light of our actions here, we need not reach this argument.
13 47 C.F.R. § 1.3.
2

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
The facts presented by Sam-Sno do not meet this burden. The Commission instituted the strict
contour overlap prohibition due to its concern over service duplication especially when, as in this case, a
party files multiple applications proposing to provide service to the same market.20 The Commission
stated that it believed that this filing strategy provided opportunities to game the auction system or to
obtain permits for the purpose of selling them.21 It also found that a significant number of translator
stations authorized out of Auction 83 were either assigned to another party or never constructed, and that
this conduct raised concerns about whether the applications had been filed with a good faith intent to
construct and operate the proposed stations.22 The Commission therefore sought to “limit substantially
the opportunity to warehouse and traffic in translator authorizations while promoting diversity goals”23
and to “[balance] the competing interests of adding new service to underserved areas by translators versus
preserving the integrity of our licensing process by dismissing applications filed for speculative reasons or
to skew our auction procedures.”24 Accordingly, when the Commission instituted the relaxed limit of
three applications per market, it clearly stated that the higher cap would only apply if applications meet
the “no overlap” and grid-protection requirements.

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)).
17Northeast 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 NetworkIP, LLC v. FCC, 548 F.3d 116, 125-128 (D.C. Cir. 2008) (“NetworkIP”); Northeast Cellular, 897 F.2d at
1166.
20 See Fifth Order on Reconsideration, 27 FCC Rcd at 15421. The Commission specifically noted that certain
factors, particularly the limited service area of a translator compared to the size of the “Appendix A” market,
weighed in favor of allowing more than one translator application in an “Appendix A” market, provided that each
translator would serve a different part of the market than any of an applicant’s existing translators or other pending
translator applications. Id. at 15420.
21 Id. at 15421.
22 Id. at 15420
23 Id. at 15406, citing Creation of a Low Power Radio Service and Amendment of Service and Eligibility Rules for
FM Broadcast Translator Stations,
Third Further Notice of Proposed Rulemaking, 26 FCC Rcd 9986, 9999 ¶ 34
(2011).
24 Fifth Order on Reconsideration, 27 FCC Rcd at 15420.
3


Notwithstanding Sam-Sno’s arguments that the McCleary and North Olympia Applications
propose to serve different “areas” within the Seattle market and have “de minimis” overlap, there are no
“special circumstances” here that would warrant a deviation from the general rule. As an initial matter,
the Commission did not establish a “de minimis” processing standard. Moreover, we cannot find that
deviation from the contour overlap prohibition here would serve the public interest. Based on its
concerns about the conduct exhibited previously by a number of Auction 83 participants, the Commission
concluded that a strict “no overlap” policy was necessary to preserve the integrity of the licensing process
and to efficiently process the remaining applications.25 Those considerations apply here. Accordingly,
we cannot find that waiver would serve the public interest.

Conclusion/Actions

. Accordingly, for the reasons set forth above, IT IS ORDERED, that the
January 10, 2013, Waiver Request of Sam-Sno Educational Media IS DENIED.
IT IS FURTHER ORDERED, that the application (File No. BNPFT-20030312BEX) of Sam-Sno
Educational Media for construction permit for a new FM translator station at McCleary, Washington, IS
DISMISSED. The staff will continue processing the application (File No. BNPFT-20030314CJX) of
Sam-Sno Educational Media for construction permit for a new FM translator station at North Olympia,
Washington.
Sincerely,

Peter H. Doyle
Chief, Audio Division

Media Bureau

25 See Fifth Order on Reconsideration, 27 FCC Rcd at 15421. As the Commission has explained, attempting a case-
by-case analysis of the thousands of pending translator applications for compliance with that rule is not feasible. Id.
The Commission also stated that its per-market cap restrictions also would advance the goal of the “Technical Need
Rule” to limit the licensing of multiple translators serving the same area to a single licensee. See also 47 C.F.R. §
74.1232(b); Fourth Report and Order, 27 FCC Rcd at 3392 (“Our translator rules contemplate that a party may
receive an authorization for a second or third FM translator serving substantially the same area as the first only after
making a ‘showing of technical need for such additional stations.’”).
4

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