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Petition For Reconsideration Of Backyard Broadcasting Denied

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Released: November 20, 2013
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Federal Communications Commission

Washington, D.C. 20554

November 20, 2013

DA 13-2223

In Reply Refer To:

1800B3-CEG

Released: November 20, 2013

Gregory L. Masters, Esq.

Wiley Rein LLP

1776 K Street NW

Washington, DC 20006

Anthony T. Lepore, Esq.

PO Box 823662

South Florida, FL 33082

In re:

W254BQ, Olean, NY

Facility ID No. 146562

File No. BMPFT-20090720AAQ

File No. BLFT-20090728AAS

Petition for Reconsideration

Informal Objection

Dear Counsel:

We have before us a petition for reconsideration (“Petition”) filed by Backyard Broadcasting

Olean Licensee, LLC (“Backyard”)1 on July 23, 2009. We also have an opposition filed by Colonial

Radio Group, Inc. (“Colonial”) on August 3, 2009 (“Opposition”). Backyard seeks reconsideration of the

grant of Colonial’s above-referenced application for a construction permit to modify FM translator

W254BQ, Olean, New York (“Station”), to increase power to 250 watts and make frequency, height, and

antenna changes (“CP Application”).2

We also have before us Colonial’s above-referenced application

for a license to cover the Construction Permit (“License Application”) and related pleadings.3

For the

reasons set forth below, we deny the Petition and Informal Objection and grant the License Application.

Background. Backyard’s sole objection is that the Station’s facility violates Section

74.1235(d)(3) of the Commission’s rules (“Rules”), which states that, for translator stations within 320

kilometers of the Canadian border, “[t]he distance to the 34 dBμ contour may not exceed 60 km in any

direction.”4

The Station’s 34 dBμ contour, Backyard states, “exceeds 60 kilometers in nearly every

direction.”5

Therefore, Backyard argues, the Station’s facilities are in clear violation of Section

74.1235(d)(3) of the Rules and the CP Application was therefore granted in error.

1 Backyard is the licensee of Stations WPIG(FM) and WHDL(AM), both Olean, New York.

2 File No. BMPFT-20090720AAQ. The CP Application was granted and a construction permit issued on July 21,

2009 (“Construction Permit”).

3

File No. BLFT-20090728AAS. On July 30, 2009, Backyard filed an informal objection to the License

Application (“Informal Objection”). On August 3, 2009, Colonial filed an opposition to the Informal Objection

(“Opposition to Informal Objection”).

4 47 C.F.R. § 74.1235(d)(3).

5 Petition at 1; Informal Objection at 1.

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In its Opposition, Colonial argues that the Station is not in violation of Section 74.1235(d)(3), “as

applied by FCC staff,” because its 34 dBμ contour does not cross the Canadian border.6

In support of this

argument, Colonial cites to various granted translator applications whose 34 dBμ contours exceeded 60

kilometers but did not cross the Canadian border.7

Discussion. Petition for Reconsideration. The Commission will consider a petition for

reconsideration only when the petitioner shows either a material error in the Commission's original order,

or raises additional facts not known or existing at the time of the petitioner's last opportunity to present

such matters.8

If the petitioner is not a party to the proceeding, it must state with particularity the manner

in which its interests are adversely affected and show good reason why it was not possible to participate

in the earlier stages of the proceeding.9

In this case, Backyard has properly alleged that its interests are

adversely affected because it competes in the Olean Arbitron Metro with Station W254BQ’s primary

station, WBYB(FM), Eldred, Pennsylvania. Backyard has also shown that its failure to participate earlier

in the proceeding was justified by the fact that the CP Application was granted one day before public

notice of its acceptance; thus, there was no opportunity to file a petition to deny before grant.10

Therefore,

Backyard has standing to petition for reconsideration of the grant of the CP Application.

We have consistently applied the 60-kilometer limitation of Section 74.1235(d)(3) only in

circumstances where an FM translator station’s proposed 34 dBμ interference contour does cross the

U.S.-Canada border. This practice results from our understanding of our treaty obligations and furthers

the public interest by providing maximum flexibility for FM translators. The relevant provisions of the

governing agreement with Canada, the FM Working Arrangement,11 state:

4.3

LPFM stations12 may be allowed an effective radiated power not to exceed 250 watts in

any direction and an interference contour (34 dBu) not to exceed 60 km subject to 4.1 and 4.2

above [relating to LPFM secondary status and available channels].

4.4

For coordination purposes, all proposals for such stations whose interference contour (34

dBu) would extend beyond the common border need to be referred for concurrence.

6 Opposition at 1-2; see Opposition to Informal Objection at 1-2.

7 Opposition at 2-3.

8 See 47 C.F.R § 1.106(c),(d); see also WWIZ, Inc., Memorandum Opinion and Order, 37 FCC 685, 686 (1964), aff'd

sub nom. Lorain Journal Co. v. FCC, 351 F.2d 824 (D.C. Cir. 1965), cert. denied, 387 U.S. 967 (1966).

9 47 C.F.R. § 1.106(b)(1).

10 The CP Application was granted on July 21, 2009, and was placed on public notice on July 22, 2009. See

Broadcast Applications, Public Notice, Report No. 27032 (July 22, 2009). In similar circumstances, the

Commission has found that a brief or non-existent filing opportunity effectively precludes participation during the

initial consideration of an application. See, e.g., Richard J. Hayes, Esq., Letter, 28 FCC Rcd 12166, 12170, n.28

(MB 2013).

11 Working Arrangement for the Allotment and Assignment of FM Broadcasting Channels under the Agreement

between the Government of Canada and the Government of the United States of America Relating to the FM

Broadcasting Service, available at https://transition.fcc.gov/ib/sand/agree/can_broad_agree.html (executed in 1991,

amended in 1997).

12 FM translators fall within the FM Working Arrangement’s definition of a “low power FM station.” See FM

Working Arrangement, Section 4.

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In applying these provisions, the Commission has consulted with its Canadian counterpart,

Industry Canada, in accordance with the agencies’ mandate to “exchange information and cooperate . . .

for the purpose of minimizing interference and obtaining maximum efficiency in the use of FM

broadcasting radio channels.”13

On the basis of that consultation, the Commission determined that

Section 4.3 of the FM Working Arrangement, which does not otherwise specify a geographic scope,

applies only in situations where Section 4.4 is implicated: i.e., to FM translators whose 34 dBμ contours

cross the Canadian border. Because Section 74.1235(d)(3) directly implements the terms of the FM

Working Arrangement, we properly look to the terms of that agreement when interpreting the scope of the

rule.14

Therefore, we find that the CP Application was not granted in error.

Conclusion. For the reasons stated, IT IS ORDERED that the petition for reconsideration filed

by Backyard Broadcasting Olean Licensee, LLC on July 23, 2009, IS DENIED.

IT IS FURTHER ORDERED that the informal objection filed by Backyard Broadcasting Olean

Licensee, LLC on July 30, 2009, is DENIED and the application of Colonial Radio Group, Inc. for a

license to cover the Construction Permit (File No. BLFT-20090728AAS) IS GRANTED.

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

13 Note from James A. Baker III to Derek H. Burney, Ambassador of Canada, Note No. 149 (Nov. 26, 1990), at 1.

14 The ERP and interfering contour distance limitations set out in Section 74.1235(d)(3) were updated in 1998 to

reflect the 1997 amendment to the Working Arrangement. See 1998 Biennial Regulatory Review—Streamlining of

Radio Technical Rules in Parts 73 and 74 of the Commission’s Rules, Notice of Proposed Rulemaking and Order, 13

FCC Rcd 14849, 14881 (1998) (“The rule revisions conform the rule to the Agreements”).

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