*Pages 1--3 from Microsoft Word - 50635.doc* Federal Communications Commission Washington, D. C. 20554 July 29, 2005 DA 05- 2189 In Reply Refer to: 1800B3- CNZ Houston Christian Broadcasters, Inc. Brazos Educational Radio c/ o Jeffrey D. Southmayd, Esq. c/ o Henry A. Solomon, Esq. Southmayd & Millar Garvey, Schubert & Barer 1220 19th Street, NW 1000 Potomac Street, NW Suite 400 Fifth Floor Washington, DC 20036 Washington, DC 20007 Rev. Robert Owens Brazos Valley Council on Alcohol and Substance Abuse President c/ o Mark Van Bergh, Esq. Philos Broadcast, Inc. Arter & Hadden, LLP 3606 Cavitt Avenue 1801 K Street, NW Bryan, TX 77801 Suite 400K Washington, DC 20006 In R e: N EW ( NCE F M), B ryan, T X Facility ID No. 90456 BPED- 19980410MA NEW (NCE FM), Caldwell, TX Facility ID No. 91682 BPED- 19980922MB NEW (NCE FM), Bryan, TX Facility ID No. 91619 BPED- 19980909MP NEW (NCE FM), College Station, TX Facility ID No. 90727 BPED- 19980515MO Applications for NCE FM Construction Permits Group No. 9804X2 Dear Counsel: We have before us Group 9804X2 – four 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 1 2 communities. 1 For the reasons below, we determine that Philos Broadcast, Inc. (“ Philos”) 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 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, Philos would serve Caldwell, Texas, Houston Christian Broadcasters, Inc. (“ HCB”) would serve Bryan, Texas, BER would serve College Station, Texas, and Brazos Valley Council on Alcohol and Substance Abuse (“ BVC”) would serve Bryan, Texas. Philos and HCBI claim that they would provide a new first or second NCE service to 10 percent of the population, and to at least 2,000 people, within their respective service areas, and therefore, that they are eligible for a fair distribution preference. 5 However, Philos is the only applicant to assert that it is entitled to a first service preference. 6 Based on Philos’ 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 Philos as the tentative selectee. Group 9804X2 thus will not proceed to a point hearing. 7 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 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 a “snap shot” date of June 4, 2001. With respect to population information, applicants were to use the 2000 Census data, if available by June 4, 2001. See March 22 Public Notice, 16 FCC Rcd at 6894. All but one of the applicants claims to use 2000 Census data. Brazos Educational Radio (“ BER”) indicates that it used 1990 Census data. 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 Philos’ 60 dBu contour encompasses 25, 307 people. Philos’ claimed aggregated first and second service is 24, 566 people. HCB’s 60 dBu contour encompasses 162,630 people. HCB’s claimed aggregated first and second service is 19, 550 people. 6 Philos claims to provide 8, 063 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 2 3 Accordingly, it is ordered that the application of Philos Broadcast, Inc. is accepted for filing. It is also ordered that Philos Broadcast, Inc. is TENTATIVELY SELECTED to be awarded a construction permit (File No. BPED- 19980922MB) for a new NCE FM station in Caldwell, Texas. 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 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. 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