Federal Communications Commission
Washington, D.C. 20554
May 1, 2014
DA 14-585In Reply Refer to:
John C. Trent, Esq.
Putbrese Hunsaker & Trent, P.C.
200 S. Church Street
Woodstock, VA 22661
Paul Dean Ford, President
Word Power, Inc.
18889 N. 2350 Street
Dennison, IL 62423
Mr. Robert Michael Ditto
8300 Wabash Avenue
Terre Haute, IN 47803
Mr. Fred J. Nation
2312 N. Trent Street
Terre Haute, IN 47804
Ms. Anna White
768 N. State Road #46
Terre Haute, IN 47803
New AM, Terre Haute, Indiana
Facility ID No. 136069
File No. BMP-20120813ABI
Petition to Deny
Dear Counsel, Messrs. Ford, Ditto, Nation, and Ms. White:
This letter refers to the long-form application (the “Application”), as amended, of Birach
Broadcasting Corporation (“Birach”), winning bidder in Auction 88 for a minor change of a new, unbuilt
AM facility (640 kHz). The Application proposes to change transmitter sites, construct a new four-tower
array, and change the community of license from Terre Haute, Indiana, to Peotone, Illinois (the
“Station”),1 and includes an Interference Reduction Agreement (“IRA”)2 proposing, inter alia
surrender of the license of Birach’s Station WMFN(AM), Zeeland, Michigan.3 We also have before us a
Application at Exhibit 13; see also Closed Auction of Broadcast Construction Permits Closes, Winning
Bidders Announced For Auction 88,
25 FCC Rcd 10071 (2010).
Application, amended March 3, 2014, at Exhibit 1, Attachment 1.
3 To facilitate Birach’s proposed change in community of license, and pursuant to 47 C.F.R. § 73.3517, the
Application is contingent, on the return of the WMFN(AM) license to the Commission. Birach requests that the
(continued . . .)
Petition to Deny the Application filed on September 20, 2012, by Word Power, Inc. (“WPI”), a former
auction applicant for the 640 kHz frequency (the “WPI Objection”); an Informal Objection, filed on
September 14, 2012, by Robert Michael Ditto (the “Ditto Objection”);4 and Informal Objections filed on
October 15, 2012, by Anna White (“White”); and October 22, 2012, by Fred J. Nation (“Nation”)
(collectively, the “Objections”), as well as various related pleadings.5 For the reasons discussed below
we: (1) dismiss WPI’s Petition to Deny and deny it when treated as an informal objection; (2) deny the
Ditto Objection; (3) deny the Objections; (4) approve the IRA; and (5) grant the Application.
The Application was filed pursuant to Sections 73.3573(a)(1)(i) and (g) of the
Commission’s Rules (the “Rules”),6 which permit a winning auction bidder to file a minor amendment to
its proposal to specify a new community of license without affording other parties an opportunity to file
competing expressions of interest. In support of the Application, Birach alleges that the proposal satisfies
the requirements for changing a station’s community of license because: (1) the proposed use of the 640
kHz frequency at Peotone will provide that community with its first local, full-time, aural service; (2) nine
stations will remain licensed to Terre Haute; and (3) the provision of a first licensed local service to the
smaller community of Peotone (population 3,385) under FM Priority (3)7 will result in a preferential
arrangement of allotments over the initiation of a tenth local service at the larger community of Terre
Haute (population 119,637).8 Birach further contends that the proposed reallotment would not violate the
Commission’s Rural 2d R&O
9 policies that restrict the relocation of radio stations from smaller
communities to larger Urbanized Areas (“UA”) and submits a Tuck
showing10 demonstrating Peotone’s
independence from the Chicago, Illinois, UA.11
Additionally, Birach proposes to increase the Station's daytime power from 0.25 kW to 4.5 kW12
and to surrender its WMFN(AM) license. In the IRA, Birach contends that grant of the proposal will
(Continued from previous page)
surrendering of the WMFN(AM) license be required at the time it files a FCC Form 302-AM application for license
at Peotone, Illinois. See
Application at Exhibit 13.
4 WPI styled its pleading as a “Petition to Deny,” but there is no indication in the Petition that it was properly served
on Birach. Accordingly, the Petition does not meet the procedural requirements for petitions to deny set forth in
Section 309(d) of the Communications Act of 1934, as amended (the “Act”). It will therefore be treated as an
informal objection pursuant to 47 C.F.R. § 73.3587.
5 These pleadings include: (1) Birach’s September 25, 2012, Opposition to the WPI Objection (“WPI Opposition”);
(2) Birach’s September 25, 2012, Opposition to the Ditto Objection (“Ditto Opposition”); and (3) Ditto’s October 9,
2012, Letter to Correct Opposition (“Reply”).
6 47 C.F.R. § 73.3573(a)(i)-(ii).
7 The FM allotment priorities are (1) first fulltime aural service; (2) second fulltime aural service; (3) first local
service; and (4) other public interest matters. Co-equal weight is given to Priorities (2) and (3). See Revision of FM
Assignment Policies and Procedures,
Second Report and Order, 90 FCC 2d 88, 91 (1982) (“FM Priorities
that under Alessandro Broadcasting Co.
, Decision, 99 FCC 2d 1 (1984), the four priorities set forth in FM Priorities
may also be applied to §307(b) determinations involving AM stations; see also Kidd Communications,
FCC Rcd 22901, 22903 (MB 2000).
Application at Exhibits 20.1-20.5.
9 See Policies to Promote Rural Radio Service and to Streamline Allotment and Assignment Procedures,
Report and Order, First Order on Reconsideration, and Second Further Notice of Proposed Rule Making, 26 FCC
Rcd 2556 (2011) (subsequent history omitted) (“Rural 2d R&O
10 See Faye and Richard Tuck, Inc.
, Memorandum Opinion and Order, 3 FCC Rcd 5374, 5378 (1978) (“Tuck
(establishing eight factors to determine whether a suburban community is independent of a nearby central city).
Application, Exhibit 21, Tuck
showing at 1-3.
Application at Section III, Item 4a.
increase service from the Station, eliminate existing prohibited overlap to a substantial area and
population,13 and will leave no area receiving fewer than five aural broadcast services.14
The WPI Objection.
WPI alleges that the Application should be dismissed because: (1) the
Chicago UA already has a plethora of existing services; (2) the previous 640 kHz operation at Terre Haute
gave the community and a very large surrounding area in rural Indiana and Illinois superior daytime and
nighttime coverage; and (3) the construction permit was auctioned for Terre Haute; thus, the 640 kHz
frequency should be re-opened for auction.15
In its Opposition, Birach argues that the WPI Objection should be dismissed because: (1) it is
procedurally defective for failure to provide service upon Birach’s counsel pursuant to Section 1.47 of the
Rules;16 (2) it is a “frivolous pleading” pursuant to Section 1.52 of the Rules,17 as WPI has not provided
any legal or technical argument as to why Birach should not be allowed to modify its construction permit
to specify a new community of license; and (3) WPI offers no legal basis for its position that Birach’s
Station authorization should be rescinded in favor of a new station in Terre Haute.18
The Ditto Objection.
Ditto argues that the Application should be dismissed because: (1) loss of
the Station will result in a less competitive environment in Terre Haute as there are only two owners of all
the licensed stations in the community -- Emmis Communications, Inc. (“Emmis”) and Midwest
Communications, Inc. (“Midwest”); (2) there will be less local programming in Terre Haute as many
programs on the other stations are “voice tracked from corporate headquarters”; (3) Terre Haute will lose
the lowest frequency (640 kHz) in the state of Indiana and a station capable of providing wide-area
service; and (4) Birach, which already owns a station -- WNWI(AM) – in Chicago, should not be allowed
to abandon Terre Haute.19
In its Ditto Opposition, Birach argues that there are nine stations licensed to Terre Haute and that
all are not owned by either Emmis or Midwest.20 In addition, Birach argues that since the community is
“well served” with five or more full-time reception services pursuant to the Rules and because the Station
“is an unbuilt construction permit,” and thus, considered only a “potential service,” it can, if deemed fit by
the Commission, move the Station to a new community of license.21 Finally, Birach contends that the
relocation of the Station to Peotone will result in the preferential use of the spectrum pursuant to Section
307(b) of the Act.22 Specifically, Birach argues that the proposed facilities will provide a “first local
Application at Exhibit 13, Attachment 13 and at Exhibit 13.7; see also
Opposition to Ditto at 2.
14 See id.
at Exhibit 1, Attachment 1.
15 WPI Objection at 1-2.
16 47 C.F.R. § 1.47; see also
Opposition at 2.
17 47 C.F.R. § 1.52.
18 Opposition at 1-2.
19 Ditto Objection at 1.
20 Our records indicate that, at Terre Haute, station WTHI-FM is licensed to Emmis, and stations WMGI(FM),
WDWQ(FM), and WIBQ(AM) are licensed to Midwest. The other Terre Haute stations are licensed to the
following entities: WCRT-FM (Illinois Bible Institute); WISU(FM) (Indiana State University); WHOJ(FM)
(Covenant Network); WPFR(AM) (WPI); and WMHD-FM (Rose-Hulman Institute of Technology).
21 Ditto Opposition at 2.
; see also
47 U.S.C. § 307(b), which mandates a “fair, efficient, and equitable” distribution of radio service.
service to Peotone” in accordance with Priority (3)23 of Section 307(b) and because this is an unbuilt
facility, Terre Haute will not be losing a station.24
In his Reply, Ditto asserts that Emmis and Midwest are the licensees of the four commercial
stations in Terre Haute and licensees of six of the 14 station signals available to Terre Haute; thus, loss of
the Station will present a less competitive environment in Terre Haute. Next, Ditto contends that Terre
Haute is not “well served” by five or more services, as Birach contends, because only four are commercial.
In addition, Ditto argues that the Station is not unbuilt, as Birach maintains, because Birach “planned” on
using the existing transmission facilities of Contemporary Media, Inc., which operated at 640 kHz in Terre
Haute for many years. Ditto also asserts that Birach’s request in the Application to construct a four-tower
array and increase in power to “4,000 watts” are indications that Birach intends to serve Chicago and not
the village of Peotone, Illinois. Finally, Ditto claims that Birach “did not enter into the auction [for the
Terre Haute permit] in good faith” because its true motive was to serve Chicago and not Terre Haute.25
The White and Nation Objections.
White and Nation in their identical Objections argue that the
Station should remain licensed to Terre Haute because of the lack of diversity and local content in the
programming currently serving the Terre Haute area. They also assert that if the Station were to be built in
Terre Haute, rather than in Peotone, it would serve a large underserved rural area with a clear daytime and
Pursuant to Section 309(e) of the Act,27 informal objections must provide properly
supported allegations of fact that, if true, would establish a substantial and material question of fact calling
for further inquiry regarding whether grant of the Application would be prima facie
Section 309(a) of the Act.28 This section provides that we are to grant an application if, upon consideration
of the application and pleadings and other such matters of which we may officially take notice, we find
that the public interest, convenience, and necessity will be served by the granting of such application. If,
however, the applicant fails to meet that standard, the Commission may deny the application after notice
and opportunity for a hearing under Section 309(e) of the Act. Objectors have not met this burden.
Section 307(b) Analysis.
Initially, we consider whether the Application complies with our Section
307(b) processing policies. In Rural 2d R&O
,29 the Commission established a rebuttable presumption that
a proposed station located within an urbanized area, or one that would or could serve 50 percent or more of
an urbanized area, should be treated as serving the entire urbanized area for purposes of applying our
Section 307(b) FM allotment priorities. In this regard, the community of Terre Haute is located within the
Terre Haute UA, and the predicted five millivolts per meter (“5 mV/m”) contour covers 100 percent of the
Terre Haute UA. The community of Peotone is not part of any urbanized area, but the proposed 5 mV/m
contour would cover 100 percent of the Kankakee, Illinois, UA, and 50.3 percent of the Chicago UA. We
24 Ditto Opposition at 3.
25 Reply at 1-2.
26 Objections at 1.
27 47 U.S.C. § 309(e).
§ 309(a). 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
1993); Area Christian Television, Inc.
, Memorandum Opinion and Order, 60 RR 2d 862, 864 (1986) (informal
objections, like petitions to deny, must contain adequate and specific factual allegations sufficient to warrant the
29 Rural 2d R&O
, 26 FCC Rcd at 2572.
find that the Rural 2d R&O
policy regarding moves from one urbanized area to another urbanized area
applies here. Furthermore, here, as in Goleta
“a first local service preference is not being
used as a basis to enter the market.”30 Therefore, we will treat the Application as serving the Kankakee
and Chicago UAs, and consider the proposal under Priority (4), other public interest matters. 31
We disagree with Ditto’s claim that the Application does not result in a preferential arrangement of
allotments and his specific claim that loss of the frequency will leave Terre Haute “in a less competitive
environment.”32 In that regard, our engineering analysis determines that the proposed change of
community of license would result in a substantial net gain of 9,892,810 persons, and that the authorized
and proposed Birach facilities would provide an additional radio signal to areas now receiving five or more
With regard to the Application’s impact on competition, we recognize the strong support that the
formerly-operating 640 kHz frequency once enjoyed in Terre Haute, and we agree with the objectors that
our Section 307(b) policies take into account the fact that listeners in a community have an expectation
that service will continue. However, in this case, the 640 kHz frequency at Terre Haute has been vacant
since September of 1998,34 and Birach is proposing to remove an unbuilt construction permit for a station
that has never served Terre Haute. The Commission has stated that an unbuilt station is “not a service on
which the public has come to rely,” and thus, its removal “does not represent the same concerns with loss
of service that removal of an operating station would represent.”35 Therefore, we find that the significantly
greater population that will receive service from moving the 640 kHz frequency to Peotone outweighs the
loss of service resulting from relocating the unbuilt station from the Terre Haute UA. In so deciding, we
are mindful that, with the nine licensed local transmission services36 that remain in Terre Haute, listeners
in that area will continue to have abundant programming choices.37 Accordingly, we find that the
proposed Station relocation to Peotone, Illinois, would serve the public interest; thus, we will deny the
30 See Goleta, California
, Letter, 26 FCC Rcd 12496, 12498 (MB 2011) (“Goleta
”) (deciding post-Rural 2d R&O
that relocation of a station from one UA to another UA is analyzed under Priority (4)) and Gearhart, Oregon
and Order, 26 FCC Rcd 10259, 10263 (MB 2011) (“Gearhart
32 Ditto Objection at 1.
33 The Commission deems five or more reception services “abundant.” See Family Broadcasting Group,
93 FCC 2d 771 (Rev. Bd. 1983), rev. denied
FCC 83-559 (Nov. 29, 1995); see also LaGrange and Rollingwood,
Memorandum Opinion and Order, 10 FCC Rcd 3337 (1995); Louisburg and Hillsborough North Carolina.
Report and Order, 21 FCC Rcd 5062, 5063 (2006) (area “well-served with 5 or more full-time reception services”); Minnesota Christian Broadcasters, Inc.,
Memorandum Opinion and Order, 18 FCC Rcd 614, 618 (2003)
(Commission considers NCE stations in determining the level of service provided to a community in order to
implement Section 307(b)).
34 See Contemporary Media Inc., Contemporary Broadcasting, Inc., Lake Broadcasting, Inc.,
Decision, 13 FCC Rcd
14437, 14461 (1998) (licensee authorized to continue operation of station WBOW(AM), Terre Haute, until 12:01
a.m. on the ninety-first day following the release date (Jun. 25, 1998) of this Decision to enable it to conclude
station’s affairs), aff’d, Contemporary Media, Inc. v. FCC,
214 F.3d 187 (D.C. Cir. 2000), cert. denied,
35 See Pawley's Island and Atlantic Beach, South Carolina,
Report and Order, 8 FCC Rcd 8657 (MMB 1993)
”) (approving change of community of license of an unbuilt station).
. In total, Terre Haute receives 16 reception services.
37 See, e.g., R&R Radio Corp., c/o Richard A. Helmick, Esq., SBR Broadcasting Corp., c/o Lewis Paper, Esq., Gold
Coast Broadcasting, LLC, c/o David Oxenford, Esq.,
Letter, 23 FCC Rcd 16489, 16493 (MB 2008) (six local
transmission services found to be abundant for a community of approximately 43,000 persons).
With respect to the WPI Objection, regardless of label, petitions or objections should contain
specific factual allegations which would warrant grant of the relief requested.38 WPI has not shown with
any degree of specificity the manner in which the Application violates Section 73.3573(a)(i) and (g) of the
Rules or Section 307(b) of the Act. Therefore, in view of our conclusions above, we find that WPI has
raised no substantial and material question of fact calling for further inquiry regarding grant of the
Application. Accordingly we will deny the WPI Objection.
Similarly, in their identical Objections, White and Nation assert simply that the frequency should
remain in Terre Haute to provide rural coverage, promote diversity and restore an historic service in the
community. They have not shown with any degree of specificity how or in what way Birach, in its
Application, has violated either Section 73.3573(a)(i) and (g) or Section 307(b).39 Therefore, we find that
White and Nation also have raised no substantial and material question of fact regarding grant of the
Application. Accordingly we will deny their Objections.
Frivolous Objection Claim
. Regarding Birach’s claim that WPI filed a “frivolous” objection, a
pleading may be deemed frivolous pursuant to Section 1.52 of the Rules40 if there is “no good ground to
support it” or it is “interposed for delay.”41 Although we will deny the WPI Objection, we do not find that
it is frivolous or abusive. In particular, we note that we have found that Birach’s claim that the proposed
move would advance Priority (3) is without merit.
Interference Reduction Agreement.
The Commission encourages AM licensees and permittees to
reach agreements to reduce power or cancel their licenses in order to permit other licensees to improve
service, and to reduce overall interference levels.42 In amending Section 73.3517 of the Rules43 in 1990 to
permit contingent applications that would “reduce interference to one or more AM stations or . . .
otherwise decrease the area of interference,” the Commission removed regulatory barriers that had
previously prevented or discouraged individual AM licensees from entering into private agreements to
decrease inter-station interference and improve the overall quality of AM service.44
IRAs which propose the deletion or modification of existing AM stations are subject to a case-by-
case public interest determination. In particular, the parties must demonstrate that a “local service floor”
would remain in the community losing a local transmission service as a result of the proposed
agreement.45 The Commission did not choose to “establish a quantifiable service floor that can uniformly
be applied with respect to the replacement of deleted facilities. However, the Commission did determine
that, at a minimum, an IRA proposing the deletion of a station could not create a “white” or “gray” area.46
47 U.S.C. § 309(d).
Objections at 1.
40 47 C.F.R. § 1.52
41 Section 1.52 prohibits the filing of frivolous informal objections or petitions to deny. Further, it is Commission
policy to investigate legitimate claims of abuse of process, and to take appropriate enforcement action when
warranted. See, e.g., Commission Takes Tough Measures Against Frivolous Pleadings,
Public Notice, 11 FCC Rcd
42 Policies to Encourage Interference Reduction between AM Broadcast Stations
, Report and Order, 5 FCC Rcd
4492 (1990) (“Interference Reduction
43 47 C.F.R. § 73.3517.
44 Interference Reduction
, 5 FCC Rcd at 4492.
A “white” area is one that receives no full-time aural service; a “gray” area receives only one full-time aural
service. 47 C.F.R. § 73.14; Interference Reduction
, 5 FCC Rcd at 4494 n.14.
When undertaking the case-by-case analysis, we generally consider four factors: the amount of
AM interference that would be eliminated in relation to the number of AM and FM services remaining
available to the areas that would lose service; the areas and populations that would gain service as a result
of the proposed change; whether the proposal would create any white or gray areas; and the availability of
AM and FM service in the area that will experience a reduction in service due to the proposed contingent
facilities changes.47 We will therefore examine Birach’s IRA in light of these four factors.
Reduction in Interference. The IRA indicates that deletion of station WMFN(AM)’s license
would result in the elimination of no domestic interference as defined by Section 73.37 of the Rules.48
However, deletion of station WMFN(AM)’s license would result in the elimination of 4,269 kilometers of
contour overlap with station CFCO(AM), Chatham, Ontario, Canada.
Increased Service. The IRA indicates that the Station’s daytime power increase would permit the
Station to serve 6,779,112 more people than the sum of the existing 2 mV/m service contours for
WMFN(AM) and a new permit at Terre Haute.
Creation of “White” or “Gray” Areas. Deletion of station WMFN(AM)’s license would not
create any white or gray areas.
Local Service Floor. Birach indicates that even after surrender of the WMFN(AM) license, the
community of Zeeland, Michigan, would continue to receive primary service from 12 full-time,
commercial FM stations and eight AM stations. Our analysis corroborates these claims. Thus, there is a
sufficient local service floor, notwithstanding removal of the WMFN(AM) signal, to warrant grant of the
Based on our consideration of these factors, we conclude that the IRA would serve the public interest.
Finding of No Significant Environmental Impact.
Because the proposed transmitter location is
located in a flood plain, Birach submitted an Environmental Assessment (“EA”) as required by Section
1.1307 of the Rules49 with the Application. The staff released a Public Notice
of the acceptance for filing of
the EA on February 27, 2014.50 The Commission received no comments in response to the Public Notice
Upon examination of the EA, we find that the information supplied satisfies the requirements
specified in Section 1.1311 of the Rules.51 Accordingly, pursuant to Section 1.1308 of the Rules,52 we find
that the proposed four-tower array at Peotone will have no significant impact on the quality of the human
environment, and no further environmental processing is warranted. Moreover, we have examined the
Application and find that it complies with all pertinent statutory and regulatory requirements.
Neither WPI, Ditto, nor Nation and White have established that grant of
the Application is inconsistent with the Commission's allotment priorities or otherwise is not in the public
47 Interference Reduction
, 5 FCC Rcd at 4494.
48 47 C.F.R. § 73.37.
49 47 C.F.R. § 1.1307.
50 See Environmental Assessment Accepted for Filing/Environmental Action
, Public Notice, Report No. MB/AD-14-
01, DA 14-266 (rel. Feb. 27, 2014) (“Public Notice
51 47 C.F.R. § 1.1311.
52 47 C.F.R. § 1.1308.
interest. Accordingly, IT IS ORDERED, that the September 14, 2012, Informal Objection filed by Robert
Michael Ditto IS DENIED.
IT IS FURTHER ORDERED, that the September 20, 2012, Petition to Deny filed by Word
Power, Inc., IS DISMISSED, and when treated as an Informal Objection, IS DENIED.
IT IS FURTHER ORDERED, that the October 15 and 22, 2012, Informal Objections filed by
Anna White and Fred J. Nation, respectively, ARE DENIED.
IT IS FURTHER ORDERED, that the Application, File No. BMP-20120813ABI, filed by Birach
Broadcasting Corporation, IS GRANTED, conditioned as follows:
Before program tests are authorized or a license to cover this authorization has been filed,
based upon the submitted IRA, the licensee of Station WMFN(AM), Zeeland, Michigan
(Facility ID No. 55089), must submit a request to cancel that license due to prohibited
daytime groundwave, co-channel overlap and nighttime RSS interference in violation of
Sections 73.37 and 73.182 of the Rules.53
We also urge the permittee to expeditiously file for a call sign for this granted permit upon receipt
of this action.
Peter H. Doyle
Chief, Audio Division
53 47 C.F.R. §§ 73.37 and 73.182. In the above condition, we reject Birach’s request to not surrender its
WMFN(AM) license until after its application for a license to cover at Peotone has been filed. See