*Pages 1--3 from Microsoft Word - 57423.doc* Federal Communications Commission Washington, D. C. 20554 June 1, 2006 DA 06- 1168 In Reply Refer To: 1800B3- ALV Released: June 1, 2006 Patrick Vaughn, Esq. Linda de Romanett American Family Association Mary V. Harris Foundation P. O. Drawer 2440 25510 Mandarin Court Tupelo, MS 38803 Loma Linda, CA 92354 Dr. Fred Carter Francis Marion University P. O. Box 100547 Florence, SC 29501 In Re: American Family Association NEW (NCE FM), Dillon, SC Facility ID No. 85507 BPED- 19970220MB Francis Marion University NEW (NCE FM), Florence, SC Facility ID No. 90125 BPED- 19980224MB Mary V. Harris Foundation NEW (NCE FM), Marion, SC Facility ID No. 90107 BPED- 19980225MF Applications for NCE FM Construction Permits Group No. 970217 Dear Applicants: We have before us Group 970217 – 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 American Family Association (“ AFA”) 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 consider combined first and second service population totals and apply the same 5,000 listener threshold. In the present group, AFA would serve Dillon, South Carolina, Francis Marion University would serve Florence, South Carolina, and Mary V. Harris Foundation (“ MVHF”) would serve Marion, South Carolina. Only AFA and MVHF 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 area, and therefore, that they are eligible for a fair distribution preference. 5 Both applicants also assert that they are entitled to a first service preference. 6 Based on the applicants’ submissions and calculations, it appears that AFA qualifies for a comparative preference because it would provide a new first service to at least 5,000 more people than MVHF. Accordingly, pursuant to Section 73.7004 of the Commission’s rules, we identify AFA as the tentative selectee. Group 970217 thus will not proceed to a point hearing. 7 Accordingly, IT IS ORDERED, That American Family Association is TENTATIVELY SELECTED to be awarded a construction permit for a new NCE FM station in Dillon, South Carolina. 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 AFA’s 60 dBu contour encompasses 170,548 people. AFA’s claimed aggregated first and second service is 51, 761 people. MVHF’s 60 dBu contour encompasses 110, 254 people. MVHF’s claimed aggregated first and second service is 33, 052 people. 6 AFA claims to provide 41, 899 people with new first service. MVHF claims to provide 24, 991 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 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 If, after the petition to deny period has run, there is no substantial and material question concerning the grantability of the tentative selectee’s application, we will, by public notice, dismiss the other mutually exclusive application and grant the application of American Family Association (File No. BPED- 19970220MB). Sincerely, Peter H. Doyle Chief, Audio Division Media Bureau cc: Gary S. Smithwick, Esq. Donald E. Martin, Esq. 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