*Pages 1--3 from Microsoft Word - 49094.doc* Federal Communications Commission Washington, D. C. 20554 June 3, 2005 DA 05- 1588 In Reply Refer to: 1800B3- CNZ Patrick J. Vaughn, Esq. American Family Association, Inc. P. O. Drawer 2440 Tupelo, MS 38803 Family Radio Network, Inc. c/ o Dean R. Brenner, Esq. Crispin & Brenner, PLLC 1156 15th Street, NW Suite 1105 Washington, DC 20005 In Re: NEW (NCE FM), Jacksonville, NC Facility ID No. 87089 BPED- 19970612ME NEW (NCE FM), Folkstone, NC Facility ID No. 84886 BPED- 19961231MA Applications for Construction Permits Group No. 961208 Dear Counsel: We have before us Group 961208 – two mutually exclusive applications for permits to construct new noncommercial educational (“ NCE”) FM stations serving different communities. In such situations, the rules require the Commission to make a threshold determination of whether grant of any of the applications would further the goals enunciated in Section 307( b) of the Communications Act of 1934, as amended, for fair, efficient, and equitable distribution of radio service among communities. 1 For the reasons below, we determine that American Family Association, Inc. (“ AFA”) is entitled to a decisive Section 307( b) preference. An NCE FM applicant is eligible to receive a Section 307( b) preference if it would provide a first or second reserved channel NCE aural service (in the aggregate) to at least ten percent of the population, 1 See 47 U. S. C. § 307( b); 47 C. F. R. § 73. 7002( a). 1 2 provided that this constitutes at least 2,000 people, within the proposed station’s 60 dBu contour. 2 If more than one applicant in a mutually exclusive group qualifies for a preference, we compare first service population coverage totals. 3 An applicant will receive a dispositive fair distribution preference by proposing to serve at least 5,000 more potential listeners than the next highest applicant’s first service total. 4 If no applicant is entitled to a first service preference, we will consider combined first and second service population totals and apply the same 5,000 listener threshold. In the present group, AFA would serve Jacksonville, North Carolina, and Family Radio Network, Inc. (“ Family”) would serve Folkstone, North Carolina. Each applicant claims that it is eligible for a fair distribution preference because each would provide a new first or second service to 10 percent of the population within its respective service area. 5 Each applicant asserts that it is entitled to a first service preference because its proposed facility would provide a first service to at least 10 percent of the population (and at least 2,000 persons) within its respective 60 dBu contour. 6 However, based on the applicants’ submissions and calculations, neither applicant qualifies for a first service comparative preference. Next, we consider whether AFA or Family would provide combined first and second service to 5,000 more persons than the other applicant. AFA would provide a first or second service to 125,163 people (18,397 plus 106,766). Family would provide a first or second service to 93,231 people (15,496 plus 77,735). Accordingly, pursuant to Section 73.7004 of the Commission’s rules, we identify AFA as the tentative selectee. Group 961208 thus will not proceed to a point hearing. 7 2 See 47 C. F. R. § 73. 7002( b). With respect to population information, applicants were to use the 2000 Census data, if available by June 4, 2001. See “Supplements and Settlements to Pending Closed Groups of Noncommercial Educational Broadcast Applications Due by June 4, 2001,” Public Notice, 16 FCC Rcd 6893 (MB Mar. 22, 2001). Applicants were also to base their “fair distribution” analysis on the “snap shot” date of June 4, 2001, which is applicable unless the applicant subsequently makes engineering changes that would diminish its comparative position. Id. In this case, neither of the applicants has made such engineering changes. In addition, each applicant timely supplemented its application with a Section 307( b) showing; each purports to be based on 2000 Census data and a “snap shot” date of June 4, 2001. 3 See 47 C. F. R. § 73. 7002( b). See also “Deadline for NCE Settlements and Supplements Extended to July 19, 2001; Date for Calculating Comparative Qualifications Remains June 4, 2001,” Public Notice, 16 FCC Rcd 10892, 10893 (MB May 24, 2001). 4 Id. 5 AFA’s 60 dBu contour encompasses 162,891 people. AFA’s claimed aggregated first and second service is 125,163 people. Family’s 60 dBu contour encompasses 117, 144 people. Family’s claimed aggregated first and second service is 93,231 people. 6 AFA claims to provide 18, 397 people with new first service. Family claims to provide 15, 496 people with new first service. 7 See 47 C. F. R. § 73. 7002( b). The Media Bureau has delegated authority to make 307( b) determinations in NCE cases. See Reexamination of the Comparative Standards for Noncommercial Educational Applicants, 15 FCC Rcd 7386 (2000), partially reversed on other grounds, NPR v. FCC, 254 F. 3d 226 (DC Cir. 2001) (“ NCE Order”). See also 47 C. F. R. § 0.283. In the NCE Order, the Commission concluded that “[ i] n examining the fair distribution issues, we will use the general process set forth in the Section of our Competitive Bidding proceeding that addressed Section 307( b) considerations for AM stations.” See NCE Order, 15 FCC Rcd at 7397 (citing Comparative Bidding for Commercial Broadcasting and Instructional Television Fixed Services, 13 FCC Rcd 15920 (1998) (delegating authority to the staff to conduct Section 307( b) analyses with respect to AM applications prior to conducting auctions of competing applications)). In contrast, the NCE Order noted that the point system analysis conducted when Section 307( b) is not determinative is considered a simplified “hearing” for purposes of 47 U. S. C. § 155( c)( 1). See NCE Order, 15 FCC Rcd at 7420. 2 3 Accordingly, it is ordered that American Family Association, Inc. is TENTATIVELY SELECTED to be awarded a construction permit (File No. BPED- 19970612ME) for a new NCE FM station in Jacksonville, North Carolina. Petitions to Deny the tentative selectee are due within thirty (30) days following the issuance of a subsequently issued public notice announcing the tentative selection of this application. 8 Sincerely, Peter H. Doyle Chief, Audio Division Media Bureau 8 See 47 C. F. R. § 73. 7004. 3