This document is saved at http://www.fcc.gov/mmb/asd/decdoc/letter/1996--10--30--kbue.html

IMPORTANT NOTE:: This document was originally prepared in Word Perfect 5.1. If the original document contained special formatting, such as boldface or italics, that information is missing from this version. Footnotes will show up in the text as (FNnumber), with the footnotes being replicated at the end of the document. Spacing, margins, tabs, page numbers, etc. may be changed too. If you need the complete document, download the Word Perfect 5.1 version.

                    Federal Communications Commission
                         Washington, D.C. 20554

                                                       In reply refer to:
                                                               1800B3-DEB
                            October 31, 1996
                                                                         
Richard E. Wiley, Esq.
Wiley, Rein & Fielding
1776 K Street NW
Washington, DC  20006
          In re:     KBUE; Long Beach, CA
          Liberman Broadcasting, Inc.
          BPH-951102ID
Dear Mr. Wiley:

This letter is in reference to the above-captioned application for a construction permit to increase
the effective radiated power of KBUE, Long Beach, CA to the maximum permitted for a Class A
station.  An informal objection has been filed against this application by KPWR License, Inc.,
licensee of KPWR, Los Angeles, CA.(FN1)  For the reasons explained below, we dismiss the
application without fully ruling on KPWR's informal objection.(FN2)


Short-spacing to cochannel station KAVC, Rosamond, CA

Presently, KBUE is spaced 110.3 km from cochannel Class A station KAVC, Rosamond, CA,
whereas 47 CFR  73.207 requires a minimum separation of 115 km.  The short-spacing was created
by the revision in the spacing rules adopted in the Second Report and Order in MM Docket 88-375,
4 FCC Rcd 6375 (1989).  Consequently, KBUE and KAVC are grandfathered with respect to each
other and are governed by the provisions of 47 CFR  73.213(c).

Waiver request.    The applicant indicates that it sought to obtain a mutual increase agreement with
KAVC pursuant to 47 CFR  73.213(c) but was unable to obtain that station's consent.  Having
failed to obtain consent in keeping with the rule, KBUE now requests waiver of 47 CFR  73.213
or 73.207 to obtain its desired power increase.  In support of the request for waivers, KBUE states
that a large mountain barrier which exists at a distance of approximately 45 to 65 km from KBUE
and between KAVC and KBUE will impose terrain shielding of each station's signal and thereby
prevent any actual interference.   A supplemental terrain analysis is provided to support this
conclusion.    In addition, KBUE claims that the increased power sought will help the station
overcome the effects of atmospheric interference caused by ducting created by a temperature
inversion layer between KBUE and a San Diego station.  Affidavits of persons with knowledge of
such complaints are provided.  Once the station's power is increased, KBUE will provide Spanish
language 60 dBu service to 41.6% more persons (totalling 5,670,482), of which 2,345,495 speak
Spanish.   Consequently, KBUE believes that grant of the requested waivers would serve the public
interest.  In its response to KPWR's objection, KBUE asserts that the policy of not granting spacing
waivers adopted by the Commission in 1989 only applies to new transmitter sites and not cases
where an applicant seeks to increase power at its present transmitter site.    

KPWR's Informal Objection.   KPWR's objection to the application states that the Commission
discontinued granting spacing waivers in 1989, citing Short-Spaced FM Assignments, 4 FCC Rcd 1681
(1989), a'ffd, 6 FCC Rcd 5356 (1991).   KPWR also cites Letter to Rebecca L. Dorch, 9 FCC Rcd
2753 (1994) in support of its proposition that the Commission will not entertain requests for
spacing waivers of  73.207.   Further, KPWR states that the use of terrain shielding to justify grant
of a waiver has been attempted (and denied) may times before.   Concerning the ducting
interference cited by KBUE,  KPWR indicates that they are not aware of any cases which a waiver
request was granted because of interference caused by this phenomenon.  KPWR does cite allotment
proceedings wherein the Commission has rejected such requests, citing Fairview and Cambridge
Springs, PA and North Kingsville, OH, 10 FCC Rcd 2149 (1995) and San Clemente, CA, MM Docket
84-442, released August 13, 1986.  Moreover, KPWR contends that some of the affidavits alleging
this type of interference are from persons located outside the 60 dBu protected contour of KBUE
and are thus not protected from interference caused by other FM stations.   Consequently, KPWR
believes that there is no basis to grant any rule waiver.  

Discussion.  As indicated above, KBUE is governed by the provisions of 47 CFR  73.213(c) with
respect to KAVC, Rosamond, CA.  That rule section provides a mechanism to be employed for
applicants who wish to increase power above the limit in  73.213(c)(1).  Specifically, an applicant
grandfathered under this rule section may seek to implement a mutual increase with the short-
spaced station, or obtain written permission from that station for a unilateral increase.   See 47 CFR
 73.213(c)(2); Second Report and Order in MM Docket 88-375, 4 FCC Rcd 6375 (1989) at Paragraph
52, Memorandum Opinion and Order in MM Docket 88-375, 6 FCC Rcd 3417 (1991) at Paragraphs
19 and 20.  As KBUE has noted, it has been unable to obtain such consent from KAVC, and thus
requests waiver of the rule.(FN3)   

Grant of a waiver of  73.213(c) is not warranted with respect to KAVC.  The terms of that rule
were written so as to prevent the creation of new interference between the short-spaced stations,
using the standard contour prediction method in 47 CFR  73.313..  For example, if KBUE were to
increase its ERP to the equivalent of 6.0 kW ERP and 100 meters HAAT (maximum Class A), no
interference would be caused to KAVC's presently licensed operation.  Yet that same increase
would permanently preclude KAVC from increasing its ERP in the future at its present transmitter
site, since any increase in ERP would cause new predicted interference within the 60 dBu contours
of both KAVC and KBUE.(FN4)   Memorandum Opinion and Order in MM Docket 88-375, supra
at Paragraphs 34 - 36.  KAVC is entitled to withhold its consent for a power increase by KBUE if it
so desires.  Moreover, the Commission has held that written consent is necessary from the opposite
station before a power increase may be implemented pursuant to 47 CFR  73.213(c).   See The
Livingston Radio Company, 10 FCC Rcd 574 (1995).     Consequently, we will not grant an
authorization to KBUE which would preclude the potential of KAVC to increase its facilities at
some future date without the written consent of KAVC containing a recognition of this
impact.(FN5)

The reference to the intervening mountain range by KBUE, which is said to preclude any
interference between KAVC and KBUE, also does not justify grant of the requested waivers.  As
KPWR has correctly noted, the Commission does not use terrain shielding to determine the
locations of predicted interference.   Nor does the Commission accept alternative propagation
methods to demonstrate lack of interference between FM stations.  Rather, the standard contour
prediction method in 47 CFR  73.313 is employed.  This issue was examined in the contour
protection rule proceeding which adopted 47 CFR  73.215.  Memorandum Opinion and Order in
MM Docket 87-121, 6 FCC Rcd 5356 (1991) at Paragraphs 9, 12.   

Like KPWR, the staff is not aware of any case in which the Commission has granted a rule waiver
based on the premise of interference from atmospheric effects, nor has KBUE cited any. 
Atmospheric ducting is not limited to Southern California only, but also occurs in such widely
scattered places as the Gulf of Mexico coast states and the Great Lakes region, as well as inland
areas of the United States.  Thus many FM stations are affected by similar disturbances.   Moreover,
the Commission recently affirmed the staff's denial of a spacing waiver request based in part on
ducting phenomena.  See ECI License Company, L.P (WYUU), 11 FCC Rcd 3545 (1996). 
Consequently, this issue does not justify waiver of  73.213.   

The Spanish language programming aired by the station also does not justify waiver of a technical
rule.   The Commission does not scrutinize or regulate entertainment programming formats, nor
does it take programming format into consideration in making its licensing decisions.  In 1977, the
Commission issued a Policy Statement in which it concluded that review of program formats was
not required by the Communications Act, would not benefit the public, and would deter
innovation, as well as impose substantial administrative burdens on the Commission.  Entertainment
Formats, 60 FCC 2d 858 (1979), reconsideration denied, 66 FCC 2d 78 (1977).  The Supreme Court
of the United States has upheld this policy, stating that "the public interest is best served by
promoting diversity in entertainment formats through market forces and competition among
broadcasters..." WNCN Listeners Guild v. FCC, 450 U.S. 582 (1981).  See also, Riverside Broadcasting
Co., Inc., 53 RR 2d 1154, 1157 (1983), reconsideration denied, 56 RR 2d 618 (1984).
Moreover, waiving technical rules on the basis of non-technical considerations would tend to
undermine the FM allocation scheme as a whole.  The policy considerations underlying our current
FM allocations scheme clearly outweigh any future benefits which would accrue were your waiver
to be granted based on the nontechnical consideration of a particular type of programming.  See 
North Texas Media, Inc. v. FCC, FCC 84-456 (released October 5, 1984), aff'd, Case No. 84-1511,
slip. op. (D.C. Cir. December 6, 1985).    Consequently, the station's current or ptoposed
programming format has not been made a factor in our analysis.

Conclusion.  We conclude that the additional population and area which would be served by a
grant of KBUE's proposal does not outweigh the considerations explained above.  Accordingly,
KBUE's request for waiver of  73.213(c) will be denied.   

     
Short-spacings to second -adjacent channel stations KPWR, Los Angeles, CA and KKGO-FM,
Los Angeles, CA

It is undisputed that KBUE, having been severely short-spaced to KPWR and KKGO-FM since the
inception of the FM spacing rules in 47 CFR  73.207 in 1962, is governed by the grandfathered
station provisions of 47 CFR  73.213(a) with respect to these two second-adjacent channel stations. 
As matters presently stand, KBUE's proposed 60 dBu contour (as well as its smaller 100 dBu
interfering contour) is completely encompassed by the 60 dBu contours of these two Class B
stations.   

Presently,  73.213(a) prohibits stations covered by the rule from extending the station's 1 mV/m
(60 dBu) contour toward the 1 mV/m contour of the grandfathered short-spaced station.  
Consequently, the rule forbids KBUE from extending its 60 dBu contour in any direction.  

Waiver requests.  KBUE has requested waiver of the rule to allow the proposed power increase.  In
addition to the ducting interference, Spanish language format, and additional population served
arguments raised by the station (which were addressed in the preceding section on KAVC and need
not be reiterated here).  KBUE asserts that the staff has a policy which permits stations like it to
increase facilities in directions away from the grandfathered short-spaced station.    In addition, the
application concludes that KBUE's signal will never be 40 dB greater than the corresponding
KPWR or KKGO-FM signal strength at any location, and thus no interference will be caused.   
Consequently, KBUE believes that its requested waivers of  73.213(a) are justified.

Objection.  KPWR's objection contends that KBUE has not demonstrated that its present service to
Long Beach is "patently inadequate".  Nor will the station serve any persons who currently lack
service; indeed, the area proposed to be served by KBUE is served by a plethora of other radio
services.  KPWR alleges that the proposed power increase would cause new interference to both
KPWR and  KKGO-FM.   Finally, KPWR notes that  73.213(a) is the subject of a Petition for
Rulemaking (RM-7651) which could affect the outcome of the KBUE proposal, and that any
Commission consideration on the proposal would be premature at this point.

Discussion.  We do not find that the KBUE proposal merits grant at this time.  As KPWR has
correctly noted, the application of  73.213(a) is the focus of a petition for rulemaking to examine
this rule.  Therefore, we will not now anticipate the results of that rulemaking proceeding in the
context of the present application with respect to  73.213(a).  In any event, it is unnecessary for us
to address this matter at this time in light of the  73.213(c) deficiency covered above.      

Final Conclusions

When an applicant seeks waiver of the rules, it must plead with particularity the facts and
circumstances which warrant such action.  Columbia Communications Corp. v. FCC, 832 F.2d 189,
192 (D.C. Cir. 1987) (quoting Rio Grand Family Radio Fellowship, Inc. v. FCC, 406 F.2d 644, 666
(D.C. Cir. 1968) (per curiam)).  We have afforded your waiver request the "hard look" called for
under the WAIT Doctrine, WAIT Radio v. FCC, 418 F2d 1153 (D.C. Cir. 1969), but find that the
facts and circumstances set forth in the justification are insufficient to establish that granting waiver
of 47 CFR  73.213(c) with respect to KAVC would be in the public interest.  

Consequently, the informal objection filed by KPWR IS GRANTED IN PART to the extent
indicated above.  The informal objection of Mount Wilson FM Broadcasters, having been
withdrawn as indicated in Footnote 1, IS HEREBY DISMISSED AS MOOT.  The requests for
waiver of 47 CFR  73.213(c) with respect to KAVC IS HEREBY DENIED, and the application
BPH-951102ID IS HEREBY DISMISSED.  These actions are taken pursuant to 47 CFR  0.283 of
the Commission's rules. 

 
                              Sincerely,



                                          Dennis Williams
                              Assistant Chief               
                                          Audio Services Division
                                                Mass Media Bureau

cc:  Radio Station KBUE (FM)
   :  Mr. Jules Cohen, PE
   :  Cohn & Marks
   :  Mr. John J. Davis
   :  Gardner, Carton & Douglas
   :  Lohnes & Culver   

___________________________________________

(FN1)  KPWR styled its pleading as a formal objection pursuant to 47 CFR  1.202(e) of the
Commission's rules.  However, only informal objections lie against minor change applications.   Therefore,
we are treating KPWR's filing as an informal objection pursuant to 47 CFR  73.3587.   

(FN2)  A second informal objection was filed by Mount Wilson FM Broadcasters ("Mount
Wilson"), licensee of second-adjacent channel station KKGO-FM, Los Angeles, CA , on
January 11, 1996.  However, on May 16, 1996, Liberman Broadcasting, Inc. and Mount
Wilson filed an agreement in which the Mount Wilson objection was withdrawn, with
Mount Wilson giving its consent to grant of the present KBUE application.  However,
because other deficiencies remain in the application which render it unacceptable for filing
(as explained below), we have not considered the merits of the agreement at this time. 
Thus, in light of the agreement and our actions in this letter, Mount Wilson's informal
objection will be dismissed as moot below. 

(FN3)  KBUE's concurrent request for waiver of  73.207 is unnecessary since KBUE does
not propose to change transmitter site or the spacing separations with respect to any other
FM station.  That rule deals only with minimum separation requirements, not the
maximum permitted power and antenna height for a station which does not comply with
the rule.  Therefore, KBUE's request for waiver of  73.207 will not be addressed further.   

(FN4)   This does not occur where a mutual increase is proposed, since the protected and
interfering signal strengths increase by corresponding amounts.   

(FN5)  KBUE is limited to maximum facilities of no more than 1.05 kW ERP and 173
meters HAAT (its presently licensed facilities) toward the 1 mV/m (60 dBu) contour of
KAVC.  A directional antenna could be employed to provide this protection, although
KBUE has rejected this approach since KBUE would not serve as many people as a
nondirectional operation would.   Alternatively, KBUE could employ the contour
protection provisions of 47 CFR  73.215, which would not require the consent of KAVC,
but would also require directional operation. 

(FN6)  Grandfathered Short-Spaced FM Stations (NPRM) , MM Docket 96-120, 61 Fed. Reg.
33474, released June 14, 1996.

ASD Decision Documents: Engineering, Legal, Commission, Combined List of Engineering and Legal Subjects

Jump to:
ASD Main Page, ASD Alphabetical Index, FCC Search Engine
Filing an Application, Application Information, AM, FM and FM Translators & Boosters, Decisions, Links Within FCC, Links to Outside the FCC

Mass Media Bureau -- Federal Communications Commission