*Pages 1--3 from Microsoft Word - 50371.doc* Federal Communications Commission Washington, D. C. 20554 July 20, 2005 DA 05- 2028 In Reply Refer to: 1800B3- CNZ Educational Media Foundation Ms. Karen Battles c/ o David D. Oxenford, Jr., Esq. President Shaw Pittman, LLP Bright Light Broadcasting, Inc. 2300 N Street, NW P. O. Box 1459 Washington, DC 20037 Washington, DC 20013 Oregon Public Broadcasting c/ o Lawrence M. Miller, Esq. Schwartz, Woods & Miller The Dupont Circle Building 1350 Connecticut Avenue, NW Suite 300 Washington, DC 20036 In Re: NEW (NCE FM), Baker City, OR Facility ID No. 94195 BPED- 19990903MD NEW (NCE FM), Baker, OR Facility ID No. 122427 BNPED- 20000209AAE NCE Station KBDC( FM), La Grande, OR Facility ID No. 122813 BNPED- 20000301AAY Applications for NCE FM Construction Permits Group No. 990902 Dear Applicants: We have before us Group 990902 – three 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 as to whether grant of any of the applications would further the fair, efficient, and equitable distribution of radio service among communities. 1 For the reasons below, we determine that Oregon Public Broadcasting (“ OPB”) is entitled to a decisive Section 307( b) preference. 1 See 47 U. S. C. § 307( b); 47 C. F. R. § 73. 7002( a). 1 2 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 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, OPB would serve Baker City, Oregon, Bright Light Broadcasting, Inc. (“ Bright Light”) would serve Baker, Oregon, and Educational Media Foundation (“ EMF”) would serve La Grande, Oregon. Each applicant claims that it would provide a new first or second NCE service to 10 percent of the population, and to at least 2,000 people, within its respective service area, and therefore, that it is eligible for a fair distribution preference. 5 OPB and Bright Light also assert that they are entitled to a first service preference because their proposed facilities would provide a first service to at least 10 percent of the population (and at least 2,000 persons) within their respective 60 dBu contours. Bright Light does not qualify for a first service comparative preference, however, because it did not include with its 307( b) showing the number of people it proposes to serve with first service. 6 Based on the applicants’ submissions and calculations, it appears that OPB is the only applicant to meet the new first service threshold, 7 so no second service analysis is undertaken. Accordingly, pursuant to Section 73.7004 of the Commission’s rules, we identify OPB as the tentative selectee. Group 990902 thus will not proceed to a point hearing. 8 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, none 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 OPB’s 60 dBu contour encompasses 13, 903 people. OPB’s claimed aggregated first and second service is 13,903 people. Bright Light’s 60 dBu contour encompasses 12, 686 people. Bright Light’s claimed aggregated first and second service is 12, 686 people. EMF’s 60 dBu contour encompasses 15, 913 people. EMF’s claimed aggregated first and second service is 16, 003 people. 6 In exhibit E- 1 to its 307( b) showing, Bright Light provides only its aggregated first and second service population totals. 7 OPB claims to provide 13, 903 people with new first service. 8 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 2 3 Accordingly, it is ordered that Oregon Public Broadcasting is TENTATIVELY SELECTED to be awarded a construction permit (File No. BPED- 19990903MD) for a new NCE FM station in Baker City, Oregon. 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. 9 Sincerely, Peter H. Doyle Chief, Audio Division Media Bureau 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. 9 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