*Pages 1--3 from Microsoft Word - 49383.doc* Federal Communications Commission Washington, D. C. 20554 June 16, 2005 DA 05- 1678 In Reply Refer to: 1800B3- CNZ Horizon Christian Fellowship of Indianapolis c/ o Harry C. Martin, Esq. Fletcher, Heald & Hildreth, PLC 1300 North 17th Street, 11th Floor Arlington, VA 22209 Hoosier Broadcasting Corporation c/ o J. Richard Carr, Esq. Law Office of J. Richard Carr 5528 Trent Street Chevy Chase, MD 20815 In Re: NEW (NCE FM), Trafalgar, IN Facility ID No. 91194 BPED- 19980716MS NEW (NCE FM), New Whiteland, IN Facility ID No. 93005 BPED- 19990311MS Applications for Construction Permits Group No. 980710 Dear Counsel: We have before us Group 980710 – 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 Horizon Christian Fellowship of Indianapolis (“ Horizon”) 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, provided that this constitutes at least 2,000 people, within the proposed station’s 60 dBu contour. 2 If 1 See 47 U. S. C. § 307( b); 47 C. F. R. § 73. 7002( a). 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 1 2 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, Horizon would serve New Whiteland, Indiana, and Hoosier Broadcasting Corporation (“ Hoosier”) would serve Trafalgar, Indiana. Each applicant claims that it would provide a new first or second service to 10 percent of the population within its respective service area, and therefore, that it is eligible for a fair distribution preference. 5 However, Horizon is the only applicant to assert that it is entitled to a first service preference. 6 Based on Horizon’s submissions and calculations, it appears that it qualifies for a first service comparative preference, so no second service analysis is undertaken. Accordingly, pursuant to Section 73.7004 of the Commission’s rules, we identify Horizon as the tentative selectee. Group 980710 thus will not proceed to a point hearing. 7 Accordingly, it is ordered that the application of Horizon Christian Fellowship of Indianapolis is accepted for filing. It is also ordered that Horizon Christian Fellowship of Indianapolis is TENTATIVELY SELECTED to be awarded a construction permit (File No. BPED- 19990311MS) for a new NCE FM station in New Whiteland, Indiana. Petitions to deny the tentative selectee are due within 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 Horizon’s 60 dBu contour encompasses 194, 432 people. Horizon’s claimed aggregated first and second service is 82, 415 people. Hoosier’s 60 dBu contour encompasses 38, 760 people. Hoosier’s claimed aggregated first and second service is 37,551 people. 6 Horizon claims to provide 41,792 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 thirty (30) days following the issuance of a subsequently issued public notice announcing the acceptance and tentative selection of this application. 8 Sincerely, Peter H. Doyle Chief, Audio Division Media Bureau 8 See 47 C. F. R. § 73. 7004. If any applicant previously raised issues against the tentative selectee, it must refile its objections within this thirty (30) day period. 3