Federal Communications Commission
Washington, D.C. 20554
October 24, 2012
DA 12-1709In Reply Refer to:
Released: October 24, 2012
Ellen Mandell Edmundson, Esq.
Cohn and Marks, LLP
1920 N Street, N.W., Suite 300
Washington, DC 20036
Donald E. Martin, Esq.
P.O. Box 8433
Falls Church, VA 22041
NCE MX Group 208
Klamath Falls SDA Church
New NCE-FM, Klamath Falls, OR
Facility ID No. 174303
File No. BNPED-20071022BCL
Petition to Deny
This letter concerns the referenced application (the “Application”) of Klamath Falls SDA Church
(“KFSC”) for a new noncommercial educational (“NCE”) FM station at Klamath Falls, Oregon. On July
29, 2008, UCB USA, Inc. (“UCB”) filed a timely “Petition to Dismiss or Deny” (the “Petition”).1 For the
reasons set forth below, we deny the Petition and grant the Application.
The Application2 was part of NCE Mutually Exclusive (“MX”) Group No. 208 in
which UCB proposed to serve Altamont, Oregon, and KFSC proposed to serve Klamath Falls, Oregon.3
Under the “fair distribution” procedures established by the Commission pursuant to Section 307(b) of the
Communications Act of 1934, as amended (the “Act”),4 only KFSC asserted that it was eligible for a fair
distribution preference. Accordingly, UCB was eliminated, and KFSC was named the tentative selectee
1 KFSC opposed (the “Opposition”) the Petition on August 25, 2008, to which UCB replied (the “Reply”) on
September 4, 2008.
2 KFSC amended the Application on January 7, 2008, to slightly reduce its directional antenna pattern (the “January
Amendment”). This amendment had no effect on the level of first and second NCE Service Area proposed. See
January Amendment, Attachment 13, “Section 307(b) Service Exhibit” and “New Amended Section 307(b) Service
3 See Threshold Fair Distribution Analysis of 32 Groups of Mutually Exclusive Applications for Permits to
Construct New or Modified Noncommercial Educational FM Stations, Memorandum Opinion and Order,
Rcd 10213, 10220 (MB 2008) (“Comparative Consideration Order
47 U.S.C. § 307(b); 47 C.F.R. § 73.7002(a).
in NCE MX Group No. 208.5 The staff then accepted the Application for filing and established a 30-day
period for filing petitions to deny.6 On July 29, 2008, UCB timely filed its Petition.
In the Petition, UCB argues that KFSC’s proposed directional pattern violates Section
73.316(c)(1) of the Commission’s Rules (the “Rules”)7 and that, due to significant terrain obstructions,
the Application fails to satisfy applicable community coverage requirements of Section 73.515 and line-
of-sight requirements of Section 73.315(b) of the Rules.8 To support the latter contention, UCB attaches
an alternate contour-prediction analysis, based on the Longley-Rice signal propagation model, purporting
to show “dramatically reduced coverage of Klamath Falls . . . .”9 UCB asserts that Section 73.313 of the
Rules10 does not bar supplemental showings; in fact, UCB claims, Section 73.313(e) permits them when
the terrain in one or more directions from the antenna site departs widely from the average elevation as
determined by measurements from 3 to 16 kilometers from the transmitter site along critical radials.11
On August 25, 2008, KFSC filed its Opposition and a technical amendment (the “August
Amendment”) proposing to meet the requirements of Section 73.316(c)(1) without changing the proposed
coverage for its new station. KFSC also argues in the Opposition that, using the standard propagation
curves in Section 73.313 of the Rules,12 the Application fully complies with Section 73.515 of the Rules,
and therefore, that it is unnecessary of it to use any alternative contour prediction methodology to
demonstrate compliance with Section 73.515. It also claims that no Commission rule or policy requires
an applicant to provide wholly unobstructed line-of-sight coverage to the community of license and cites
to several NCE-FM applications which were granted after the adoption of Section 73.515 where terrain
obstacles limited service from the proposed antenna location to the proposed community of license.13
In its Reply, UCB argues that Section 73.3522 of the Rules14 bars KFSC from filing the August
Amendment to correct the defective antenna pattern15 and reiterates its argument that terrain obstructions
will “virtually block a 60 dBμ signal from reaching Klamath Falls.16
5 KFSC’s 60 dBμ contour encompasses 42,410 people. KFSC claimed aggregated first and second NCE service to
4,266 people. Thus, the staff found that KFSC would provide combined first and second NCE service to ten percent
of the population within its 60 dBμ contour and to more than 2,000 people. See Comparative Consideration Order,
23 FCC Rcd at 10220 ¶ 26 and 47 C.F.R. § 73.7002(b).
6 Comparative Consideration Order
, 23 FCC Rcd at 10228.
7 47 C.F.R. § 73.316(c)(1). UCB argues that KFSC’s directional pattern specified a maximum relative field value of
0.9 instead of 1.0 as required by the Rule.
8 47 C.F.R. §§ 73.515 and 73.315(b).
9 Petition at 6 and Engineering Statement of Hatfield and Dawson at Exhibit 5.
10 47 C.F.R. § 73.313.
11 Petition at 6.
12 47 C.F.R. § 73.313.
13 Reply, Engineering Statement at 6-7.
14 47 C.F.R. § 73.3522(b).
15 Reply at 3. UCB argues that Section 73.3522(b) permits amendments as a matter of right only under the
following restricted circumstances: (1) during an amendment period announced by Public Notice; (2) by a tentative
selectee whose application was returned due to an acceptance defect; (3) to update information supplied in the
application; or (4) in response to a Commission request.
Pursuant to the Act, 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 Section 309(a) of the Act.17 We find that UCB has not presented
specific factual allegations sufficient to meet this standard.
Directional Antenna. The staff routinely allows NCE window applicants and/or tentative
selectees to file minor perfecting amendments, such as the August Amendment correcting the minor
relative field value problem here, provided that they do not change an application’s comparative status
versus other applications in a mutually-exclusive group.18 In this case, the first and second NCE service
population figures in KFSC’s original Application, January Amendment and August Amendment, are
identical.19 We therefore will accept the August Amendment.
Community Coverage. UCB alleges that, according to its alternative Longley-Rice contour
analysis, the intervening terrain will attenuate the proposed station’s signal so that only 1.6% of the
population (321 out of 19,462 persons) and only 9.6% of the area within the geographic boundaries of
Klamath Falls (4.7 sq. km out of 43.4 sq. km) is predicted to receive 60 dBμ service from the proposed
facility.20 It cites Christopher D. Imlay
21 as an example of the staff’s dismissal of an NCE application that
did not meet the minimum coverage requirements of Section 73.515 where a terrain obstruction between a
proposed transmitter site and the proposed license community precluded line-of-sight service to the
community.22 KFSC submits in its Opposition that, applying the standard contour prediction
(Continued from previous page)
at 5. UCB argues that “it would be disingenuous . . . to ignore the existence of two intervening mountain
peaks, one 1809 meters above mean sea level and the other 1821 meters above mean sea level, that tower 290 meters
above [KFSC’s] proposed antenna site and 640 meters above Klamath Falls.” Id.
UCB also argues for the first time in its Reply that the alleged deficient coverage calls into question whether the
proposal satisfies Section 307(b) of the Act, because the association of a broadcast station with a community of
license is a basic tenet of the Commission’s allocation scheme for broadcast stations. Because 47 C.F.R. § 1.45(c)
specifies that arguments in replies are to be limited to matters raised in an opposition, we will not consider this
17 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), rehearing denied
(Sep. 10, 1993); Area
Christian Television, Inc.
, Memorandum Opinion and Order, 60 RR 2d 862, 864 (1986) (petitions to deny must
contain adequate and specific factual allegations sufficient to warrant the relief requested).
18 See, e.g., Eagle’s Nest Fellowship Church,
Letter, 23 FCC Rcd 862, 866 and n.25 (MB 2008) (tentative selectee’s
minor amendment to site and technical facilities accepted when proposed amendment did not affect applicant’s
comparative status); see also
47 C.F.R. § 73.7002(c).
August Amendment, Exhibit 1: “The amendment corrects the directional antenna relative field pattern and
maximum ERP . . . . As result of the amendment, the coverage achieved by the amended technical facility will be
exactly the same as the originally proposed technical facility.”
20 Petition at 6-7.
at 5, n.13 (citing Christopher D. Imlay, Esq.,
Letter, 20 FCC Rcd 11977 (MB 2005) (“Imlay
22 UCB also attaches four unpublished staff decisions returning applications which did not meet the minimum
coverage requirements of Section 73.515 using the standard contour prediction method. These cases are factually
distinguishable because, as noted, because the Application complies with Section 73.515 based on standard contour
prediction methodology calculations. In any event, we decline to consider these decisions which UCB improperly
cites as precedent. See
47 C.F.R. § 0.445(e).
methodology specified in the Rules, it will cover 62.1% of Klamath Falls and 61.8% of the population
within that community, in full compliance with Section 73.515 and that it need not supply anything
UCB’s argument is misguided. In Imlay
, no part of the applicant’s proposed 60 dBμ signal
reached the community of license, and the published disposition is silent regarding the specific causes of
the coverage deficiency.24 Here, the Application meets the minimum coverage requirements of Section
73.515 using the standard contour prediction method. We have previously held that if an applicant
satisfies the 60 dBμ requirements of Section 73.515 using the standard contour prediction method
specified in the Rules, a petitioner cannot contest the applicant’s showing with an alternate, supplemental
UCB also argues that “numerous FM [allotment] proposals” have been rejected where it was
shown that a terrain obstruction between a proposed transmitter site and the proposed license community
would preclude line-of-sight to the license community, providing several examples.26 The cited cases do
not support UCB’s position. Although several of those cases involved terrain obstruction or shadowing
issues, the staff rejected the proposed allotments because the proponent failed to demonstrate that a site
was available that would comply with both the 70 dBμ requirements of Section 73.315 and the
Commission’s spacing rules.27 In contrast, as we previously found, the Application satisfies the 60 dBμ
requirements of Section 73.515 using the standard contour prediction method specified in the Rules.28
23 Reply, Engineering Statement, at 6 and Exhibit 1.
24 See Imlay,
20 FCC Rcd at 11977 n.3.
25 See, e.g., Shaw Communications, Inc.,
Memorandum Opinion and Order, 24 FCC Rcd 5852, 5853 (2009)
(Longley-Rice showing not entertained where compliance had been demonstrated by the standard contour prediction
method in 47 C.F.R. § 73.313), citing Letter to Lee Shubert, Esq.,
10 FCC Rcd 3159, 3160 (MMB 1995).
26 Petition at 5, n.12 (citing Cheboygan, Rogers City, Michigan, et al.,
Memorandum Opinion and Order, 18 FCC
Rcd 8532 (MB 2004) (“Cheboygan
”); Jefferson City
, Cumberland Gap, Elizabethton, Tennessee, et al.,
Memorandum Opinion and Order, 13 FCC Rcd 2303 (MMB 1998); Eugene, Oregon,
Report and Order, 10 FCC
Rcd 9793 (MMB 1995) (“Eugene
”); Wadley and Dadeville, Alabama
, Report and Order, 60 RR 2d 1462 (MMB
1986); Athens and New Boston, Ohio,
Report and Order, 48 RR 2d 1628 (MMB 1981); and Attica and Warsaw, New
Report and Order, 54 FCC 2d 1137 (1975)).
27 In Cheboygan
, the staff found that, due to a terrain obstruction, the proponent had not demonstrated that there was
an available site which would comply with Section 73.315 and receive FAA approval.
also illustrates the marked differences in allotment proposal and broadcast application staff review
processes which make allocation cases inapplicable in nearly all application cases, in which the applicant proposes a
specific transmitter site:
Ordinarily, there is no need to specify a particular site [in allotment cases], it is only necessary to
show that a suitable site area exists. However, in some cases, clarification may be necessary and
an additional showing may be required before we can make the [channel] assignment. This was
true [in Pinckneyville, Illinois] . . . because of a concern about being able to find a site that met the
spacing requirements and which would provide requisite city coverage.
10 FCC Rcd at 9794,
citing Pinckneyville, Illinois,
Report and Order, 41 RR 2d 69, 71-72 (MMB
Moreover, even were we to consider UCB’s supplemental materials, we would reach the same
result. Even for commercial stations, line-of-sight is not an absolute requirement.29 Adequate coverage
may still be obtained from a diffracted signal,30 and the standard propagation methodology relied on in the
Application accounts for terrain obstruction effects. Signal attenuation under the standard contour
prediction method is based on the average elevation of a radial segment between 3 and 16 kilometers
from a station’s transmitter site. The standard contour prediction methodology does not assume a
uniform terrain throughout the country along each radial, but rather takes into account actual topographic
data. As the terrain obstructions cited by UCB fall within this radial segment, the standard contour
prediction method incorporates the elevations of the alleged terrain obstructions in computing the average
elevation of the radial. That is, in this case the methodology predicts increased signal attenuation in the
direction of Klamath Falls, and decreases the distance to the predicted 60 dBµ contour along these radials
For the reasons set forth above, we find that UCB has not raised a
substantial and material question of fact calling for further inquiry regarding the KFSC proposal.
Additionally, we have examined the amended Application and find that it complies with all
pertinent statutory and regulatory requirements and that its grant would further the public interest,
convenience, and necessity.
Accordingly, IT IS ORDERED that the “Petition to Dismiss or Deny” filed by UCB
USA, Inc., on July 29, 2008, IS DENIED.
IT IS FURTHER ORDERED, that the Application (File No. BNPED-20071022BCL) of Klamath
Falls SDA Church for a new noncommercial educational FM station at Klamath Falls, Oregon, IS
GRANTED, subject to the condition that Klamath Falls SDA Church must operate technical facilities
substantially as proposed for a period of four years of on-air operations.31
Peter H. Doyle
Chief, Audio Division
Klamath Falls SDA Church
UCB USA, Inc.
29 See Rush County Broadcasting Co., Inc.,
Memorandum Opinion and Order, 26 FCC 2d 480 (1970) (line-of-sight
to the community is not an absolute requirement); see also White County Broadcasting
, Hearing Designation Order,
5 FCC Rcd 5642 (1990) (failure to provide line-of-sight does not necessarily imply deficient coverage);
30 See Lawrence Bernstein, Esq., and David D. Oxenford, Esq.
24 FCC Rcd 7400, 7403 (MB 2009); see also
Lightning Bug Broadcasting, et al.,
Hearing Designation Order, 5 FCC Rcd 5404 (MMB 1990).
47 C.F.R. § 73.7002(c).