This document is saved at http://www.fcc.gov/mmb/asd/decdoc/letter/1998--03--27--kaw.html

                                

                    FEDERAL COMMUNICATIONS COMMISSION
                         WASHINGTON, D.C.  20554

                                                       In Reply Refer To:
                                                               1800B3-WJS
                             March 27, 1998
                                                                         
Jack Klinknett
Attorney at Law
1201 New Jersey St.
Lawrence, Kansas  66044
  
     In re:     Unlicensed FM station "KAW"
     Request for waiver of FCC rules limiting 
     low power FM service
       
Dear Mr. Klinknett:

     This letter responds to your letter dated November 10, 1997 requesting waiver of 47
C.F.R. §§ 15.239(a), 73.211(a) and 73.511(a) for "KAW," an unlicensed FM
station transmitting on 88.9 MHz in Lawrence, Kansas with an effective power of no more
than 10 watts.  In support of the waiver request, you argue that Commission rules limiting
low power FM service are unconstitutional and that "KAW"'s operation serves the public
interest.  In the event that the waiver request is denied, you also request that the Commission
stay any enforcement action against "KAW" pending resolution of United States of
America v. Dunifer, No. C 94-03452 CW (N.D. Cal. docketed Oct. 6, 1994) ("U.S. v.
Dunifer").  For the reasons set forth below, we will dismiss the waiver request and deny
the request for stay.

     In the absence of an application for a license, your request amounts to a request for
approval of an unlicensed broadcasting operation.  Section 301 of the Communications Act,
however, requires a license in order to broadcast and the Commission has no authority to
waive that statutory requirement.  47 U.S.C. § 301.  The Commission does have
authority to waive its rules limiting low power FM service that, absent a waiver, would
preclude the grant of an application for a low power FM broadcast station.  47 C.F.R. §
1.3.  But we will not consider a request for a waiver of these rules or a challenge to the
validity of the rules except in the context of a petition for rulemaking to change the rules, 47
C.F.R. § 1.401, or a "written" application for a license with the information required by
Section 308 of the Communications Act, 47 U.S.C. § 308, and the Commission's
implementing regulations, together with a request for waiver of the relevant rules.  47 C.F.R.
§ 73.3566; see generally Stephen Paul Dunifer, 11 FCC Rcd 718,
¶¶ 8-9 (1995).  Accordingly, the waiver request will be dismissed.

     You also request that the Commission allow "KAW" to continue to operate its
unlicensed station "without penalty or censure" pending resolution of U.S. v. Dunifer. 
You assert that the U.S. v. Dunifer case involves issues similar to those presented
here.  You have made no effort, however, to show sufficient grounds warranting a stay of any
enforcement action by the government against "KAW."  See WIYN Radio,
Inc., 59 FCC 2d 424, ¶ 4 (1976).  First, you cannot show that "KAW" is likely to
prevail on the merits in any enforcement action brought against it because "KAW" is violating
Section 301 by broadcasting without a license.  47 U.S.C. § 301; see WIYN Radio,
Inc., 59 FCC 2d at 425,  ¶ 4.  Second, there is no irreparable injury here to a
legally protected interest because "KAW" has no right to broadcast without a license.  47
U.S.C. § 301; see NBC v. United States, 319 U.S. 190, 227 (1943).  Third,
issuance of a stay may harm other parties, specifically licensed broadcasters who may receive
interference as a result of "KAW"'s unlicensed operation.  See Stephen Paul Dunifer,
11 FCC Rcd at 724, ¶ 14.  Finally, the public interest is not served by unlicensed
broadcasting in violation of Section 301.  See id. at 722-28, ¶¶ 12-24. 
Accordingly, your request for stay of action will be denied.

     In light of the foregoing, the instant request for waiver of 47 C.F.R. §§
15.239(a), 73.211(a) and 73.511(a) for unlicensed FM station "KAW" IS HEREBY
DISMISSED.  The request for stay IS HEREBY DENIED. 

     This is a staff action not subject to judicial review.  If you wish to appeal this action,
you may file an application for review by the full Commission under 47 C.F.R. §
1.115.  If the Commission upholds this action, you may file an appeal with the United States
Court of Appeals for the District of Columbia Circuit under 47 U.S.C. § 402(b)(1).  In
addition, you may wish to file comments in response to one or both of the petitions for rule
making pending before the Commission regarding low power broadcast stations.  See
Public Notice, Rule Making No. 9242 (February 20, 1998); Public Notice, Rule
Making No. 9208 (February 5, 1998). 

                Sincerely,



     Roy Stewart, Chief
     Mass Media Bureau

cc:  Pamera Hairston
     Suzon Landeck
     David Silberman

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