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MB Denies Application to Change WWIN-FM Community of License

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Released: October 13, 2011
Federal Communications Commission
Washington, D.C. 20554
October 13, 2011

DA 11-1705
Released: October 13, 2011
In Reply Refer to:
1800B3-TSN
Radio One Licenses, LLC
c/o John F. Garziglia, Esq.
Womble Carlyle Sandridge & Rice, PLLC
1401 I Street, N.W.
Suite 700
Washington, DC 20005
CBS Radio, Inc. of Maryland
c/o Steven A. Lerman, Esq.
Lerman Senter PLLC
2000 K Street, N.W.
Suite 600
Washington, DC 20006-1809
Howard University
c/o Sherri N. Blount, Esq.
Fitch, Even, Tabin & Flannery
One Lafayette Center
1120 20th Street, N.W.
Suite 750S
Washington, DC 20036
Prettyman Broadcasting Company
c/o M. Anne Swanson, Esq.
Dow Lohnes PLLC
1200 New Hampshire Avenue, N.W.
Suite 800
Washington, DC 20036-6802
In re:

Radio One Licenses, LLC

WWIN-FM, Glen Burnie, Maryland
Facility ID No. 54710
File No. BPH-20080701ACS

Application for Minor Modification

to Licensed Facility

Dear Counsel:
We have before us the application of Radio One Licenses, LLC ("Radio One") for a minor
modification to station WWIN-FM, Glen Burnie, Maryland (the "Application").1 Radio One seeks to
change WWIN-FM's community of license from Glen Burnie to Arbutus, Maryland. Also before us are
informal objections to the Application filed by CBS Radio of Maryland, Inc. ("CBS"),2 licensee of station
WPGC-FM, Morningside, Maryland; Howard University ("Howard"), licensee of WHUR-FM,
Washington, DC; and Prettyman Broadcasting Company ("Prettyman"), licensee of WICL(FM),
Williamsport, Maryland, as well as Radio One's Opposition to Informal Objections. For the reasons set
forth below, we grant the informal objections and dismiss the Application.

Background.

WWIN-FM is a pre-1964 grandfathered short-spaced station licensed at Glen
Burnie, Maryland, currently operating with 3 kilowatts effective radiated power ("ERP") with an antenna
at 91 meters height above average terrain ("HAAT"). It proposes to provide Arbutus with a first local
transmission service from the current WWIN-FM transmitter site, stating that no other fully spaced
allotment coordinates exist for an FM allotment at Arbutus, and that the current WWIN-FM transmitter
site is the only possible site from which to serve Arbutus. Radio One does, however, request an increase
in power from 3 kilowatts to 6 kilowatts ERP. In order to prosecute the Application as a minor
modification to the WWIN-FM facilities, Radio One seeks waiver of Section 73.3573(g)(4) of the
Commission's Rules (which requires that such applications demonstrate the existence of a suitable
assignment or allotment site that fully complies with Sections 73.207 and 73.315 of the Rules without
resort to Sections 73.213 or 73.215),3 and Section 73.213(a) of the Rules (which requires that any
modification to the facilities of a pre-1964 short-spaced station not increase the area and population of
interference to any other co-channel or first-adjacent channel station).4 Radio One contends that no
existing short spacings will be exacerbated, as no change in the antenna, antenna height, or transmitter
location is proposed, and that the only impermissible increase in interference will be to first-adjacent
channel WSOX(FM), Red Lion, Pennsylvania, whose licensee, Susquehanna License Co., LLC,
("Susquehanna") has consented to the increased interference. Ultimately, Radio One argues, any
interference or other concerns are overridden by the public interest benefits of providing first local
transmission service at Arbutus, a Census Designated Place with a 2000 Census population of 20,116.
CBS, Howard, and Prettyman each contend that the Application cannot be granted, principally
because it would increase the amount of interference to first-adjacent channel WSOX(FM), and that the
Commission precedent cited by Radio One can be distinguished on the ground that, in those cases,
interference was neither increased nor exacerbated. CBS and Howard also insist that grant of the
Application would increase interference to second-adjacent channel WPGC-FM and WHUR-FM, while
Prettyman argues that grant of the application would increase interference to co-channel WICL(FM).
Radio One counters that Section 73.213 does not apply to second-adjacent channel stations as to which
short spacing has existed since prior to November 16, 1964; disputes Prettyman's claim of additional


1 File No. BPH-20080701ACS.
2 CBS's filing is styled "Comments in Opposition of CBS Radio Inc. of Maryland." We shall treat it as an informal
objection.
3 47 C.F.R. 73.3573(g)(4).
4 Id., 73.213(a).
2

interference to its protected contour; and reiterates its contention that the provision of first local
transmission service at Arbutus constitutes a "persuasive" case for waiver of Section 73.213(a)(2) of the
Rules.

Discussion.

We note at the outset that this application is subject to the new standards of
evaluation under Section 307(b) of the Communications Act,5 as announced in the Second Report and
Order in Policies to Promote Rural Radio Service and to Streamline Allotment and Assignment
Procedures
.6 As both Glen Burnie and Arbutus, Maryland, are located in the Baltimore Urbanized Area,
Radio One correctly notes that it is not required to provide a showing of community independence under
Faye and Richard Tuck.7 However, under our new policies, Radio One may not simply claim that the
Application proposes a preferential arrangement of allotments because it would constitute first local
transmission service at Arbutus under Priority (3) of the Commission's allotment priorities.8 Rather, it
must make its showing under Priority (4), other public interest matters, by demonstrating from which of
the two communities the station would provide service to a greater area and population within the
urbanized area.9 Radio One did not make such a supplemental showing pursuant to the new Section
307(b) standards, although from the technical exhibit submitted it is apparent that the proposed facility
would cover more of the Baltimore Urbanized Area than the current WWIN-FM facility.10 For the
reasons discussed below, however, we dismiss the Application and deny Radio One's request for waiver
of the Rules.
When seeking waiver of a rule, an applicant's burden is to plead with particularity the facts and
circumstances that warrant such action.11 Thus, an applicant for waiver "faces a high hurdle even at the
starting gate."12 While the Commission must consider carefully all waiver requests, such requests must
be supported by a compelling showing in order to be granted.13 "A waiver is appropriate only if special
circumstances warrant a deviation from the general rule and such deviation will serve the public
interest."14 In this case Radio One seeks not one but two waivers: waiver of Section 73.3573(g)(4), so
that it may "resort" to Section 73.213; and waiver of Section 73.213(a), because Radio One's proposal


5 47 U.S.C. 307(b) ("Section 307(b)").
6 Second Report and Order, First Order on Reconsideration, and Second Further Notice of Proposed Rule Making,
26 FCC Rcd 2556, 2576-78 (2011) ("Rural Second R&O").
7 Memorandum Opinion and Order, 3 FCC Rcd 5374, 5376 (1988).
8 Revision of FM Assignment Policies and Procedures, Second Report and Order, 90 F.C.C.2d 88, 91-93 (1982).
9 See, e.g., Gearhart, Madras, Manzanita, and Seaside, Oregon, Report and Order, 26 FCC Rcd 10259 (MB 2011).
10 Radio One claims that the WWIN-FM facility modification will result in a net population gain in interference-
free, protected service to 228,858 persons, or 17.9 percent, although it does not state what proportion of that
population resides in the Baltimore Urbanized Area.
11 See Columbia Communications Corp. v. FCC, 832 F.2d 189, 192 (D.C. Cir. 1987), citing Rio Grande Family
Radio Fellowship, Inc. v. FCC,
406 F.2d 644, 666 (D.C. Cir. 1968).
12 WAIT Radio, 418 F.2d at 1157.
13 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).
14 Northeast Cellular, 897 F.2d at 1166.
3

would increase first-adjacent channel interference to WSOX(FM). The only special circumstances cited
in support of the waiver requests are Radio One's inability to change its transmitter site, based on the
grandfathered short spacing, and the claimed public interest benefit of providing a first local transmission
service at Arbutus.
We agree with the objectors that both the text of Section 73.213, and the cases Radio One cites in
support of its Application and waiver requests, do not contemplate a situation in which the areas and
populations affected by interference from a grandfathered pre-1964 station to a co- or first-adjacent
channel station are increased. Under Section 73.213, modifications of stations that have been short-
spaced prior to November 16, 1964, may only occur upon a showing that any area predicted to receive
interference lies completely within any area currently predicted to receive co-channel or first-adjacent
channel interference, or a showing that the total area and population subject to such interference, caused
and received, would be maintained or decreased.15 The rule section, in short, does not allow
modifications that would increase the areas or populations receiving co-channel or first-adjacent channel
interference. Radio One cites a number of cases as prelude to a request that we extend existing policies
regarding changes of community of license for grandfathered short-spaced stations. First, Radio One
cites Newnan and Peachtree City, Georgia,16 in which the staff granted an application to change an FM
station's community of license, when the allotment at the new community created no new short spacings
and there was no change in technical facilities. Next, it cites Albemarle and Indian Trail, North
Carolina
,17 which unlike Newnan and its progeny did not involve maintaining a station's technical status
quo
. However, while the applicant in Albemarle did propose changes to the station's technical facilities,
the proposed modifications eliminated two existing short spacings and significantly reduced a third. In
other words, while our precedent allows pre-1964 short-spaced stations to propose community changes
that would either maintain or reduce short spacings or the amount of interference caused, nothing suggests
that we would or should allow increases in the amount of interference caused to other stations. The
instant proposal would maintain existing short spacings and increase interference.
Radio One states that the "overarching" public interest benefit of providing first local
transmission service to an unincorporated Census Designated Place of over 20,000 population, located
within the Baltimore Urbanized Area, justifies extending our policies to allow such increased
interference.18 Given the Commission's presumption of urbanized area service, as articulated in the Rural
Second R&O
, we cannot agree.19 Moreover, the Commission has a long-standing policy of refusing to
base waivers of rules designed to prevent interference on non-technical considerations such as ownership
or programming.20 Finally, except in certain narrowly defined, rule-based circumstances,21 the


15 47 C.F.R. 73.213.
16 Report and Order, 7 FCC Rcd 6307, 6308 (MMB 1992) ("Newnan"). See also Oceanside and Encinitas,
California
, Report and Order, 14 FCC Rcd 15302, 15304 (MMB 1999); Berlin and North Conway, New Hampshire,
Report and Order, 14 FCC Rcd 15307, 15308 (MMB 1999).
17 Report and Order, 16 FCC Rcd 13876 (MMB 2001) ("Albemarle").
18 Section 307(b) Showing, Request for Waiver of Section 73.3573(g)(4) of the Commission's Rules, and Request
for Waiver of Section 73.213(a) of the Commission's Rules (Attachment 35 to Application) at 3.
19 Rural Second R&O, 26 FCC Rcd at 2572, 2577.
20 See, e.g., Open Media Corporation, Northern Illinois University, and Rockford Educational Broadcasting
Foundation
, Memorandum Opinion and Order, 8 FCC Rcd 4070, 4071 (1993); Walter F. Faber, Jr., Memorandum
4

Commission has a long-standing prohibition against negotiated or otherwise consensual interference in
the FM broadcast band.22 Although the Commission has stated that it is in the public interest to consider
allowing negotiated interference agreements among FM licensees, to date it has not lifted this general
prohibition, and it is not appropriate for us to implement such a policy change in this adjudicatory
context.23 Thus, while Susquehanna has consented to the additional interference that station WSOX(FM)
would receive as a result of Radio One's proposal, a broadcaster's acquiescence to increased interference
is not decisive, because it is the listeners in the affected area who are the beneficiaries of the
Commission's spacing rules and other policies designed to limit interference.24 In summary, we find that
a proposed community of license change from one community in an urbanized area to another within the
same urbanized area does not constitute sufficient special circumstances to justify waiver of two separate
rules that underlie important Commission policies regarding FM interference.

Conclusion / Ordering Clauses.

For the reasons set forth above, the waiver request filed by
Radio One Licenses, LLC, IS DENIED. The informal objections filed by CBS, Howard, and Prettyman
ARE GRANTED, and the Application filed by Radio One Licenses, LLC, File No. BPH-20080701ACS
IS DISMISSED.
Sincerely,
Peter H. Doyle
Chief, Audio Division
Media Bureau





Opinion and Order, 4 FCC Rcd 5492, 5493 (1989), recon. denied, 6 FCC Rcd 3601 (1991), aff'd sub nom. Walter F.
Faber, Jr. v. FCC
, No. 91-177, 962 F.2d 1076 (D.C. Cir. June 4, 1992), reh'g denied (D.C. Cir. July 30, 1992).
21 See, e.g., 47 C.F.R. 73.213(c)(2).
22 1998 Biennial Regulatory Review Streamlining of Radio Technical Rules in Parts 73 and 74 of the
Commission's Rules
, Notice of Proposed Rule Making, 13 FCC Rcd 14849, 14853-54 (1998).
23 1998 Biennial Regulatory Review Streamlining of Radio Technical Rules in Parts 73 and 74 of the
Commission's Rules
, Second Report and Order, 15 FCC Rcd 21649, 21651 (2000).
24 See Eatonton and Sandy Springs, Georgia, and Anniston and Lineville, Alabama, Report and Order, 6 FCC Rcd
6580, 6583 n.20 (MMB 1991), quoting Millington, Maryland, Memorandum Opinion and Order, 45 R.R.2d 1689,
1691 (BB 1979).
5

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