11 FCC Red No.6
Federal Communications Commission Record
DA 96-174
Before the
Federal Communications Commission
Washington, D.C. 20554
MM Docket No. 94.101
In the Matter of
Amendment of Section 73.202(b),
RM-8510
Table of Allotments,
FM Broadcast Stations.
(Kerman, California)
REPORT AND ORDER
(Proceeding Terminated)
Adopted: February 12, 1996;
Released: March 4, 1996
By the Chief, Allocations Branch:
1. Before the Commission for consideration is the Notice
of Proposed Rule Making, 9 FCC Rcd 5232 (1994), issued
in response to a petition filed by Valley Center Broadcast-
ing ("petitioner") proposing the allotment of Channel
252A to Kerman, California, as that community's second
local FM service. Petitioner filed supporting comments in
response to the Notice) Southeast Asian Broadcasting of
Kerman ("Southeast Asian") also filed comments stating
that it, or an affiliated entity will apply for Channel 252A
if allotted to Kerman, as requested. Comments were also
filed on behalf of EBE Communications Limited Partner-
ship ("EBE") licensee of Station KNAX(FM). Channel
250B, Fresno, California! Petitioner and Southeast Asian
each filed reply comments.
2. The Notice herein proposed to allot Channel 252A to
Kerman with a site restriction 0.7 kilometers (0.4 miles)
south of the community at coordinates 36-43-05 and
120-03-55. The site restriction was proposed to avoid a
short spacing to the licensed site of Station KNAX(FM).
Channel 250B, Fresno, at coordinates 37-04-29 and
119-25-52.
3. In response to the Notice, EBE advises that the pro-
posed allotment of Channel 252A to Kerman is mutually
exclusive with its modification application (File No. BPH-
As stated in the Notice, petitioner's request, although signed
and its address provided, failed to include an affidavit verifying
statements contained in its petition, as required by Section 1.52
of the Commission's Rules. Petitioner was requested to correct
the deficiency in its responsive comments and has complied
accordingly.
Although EBE's comments were styled as "Comments and
Counterproposal", they have not been treated as a counter-
proposal. A counterproposal is a proposal for an alternative and
mutually exclusive allotment or set of allotments in the context
of the proceeding in which the proposal is made. See, e.g.,
tmplemensation of BC Docket 89-90 to Increase the Aailabiliiy
of FM Broadcast Assignments, 5 FCC Rcd 931 (1990). In this
instance EBE's comments contained a settlement suggestion of
an alternate channel for allotment at Kerman to resolve the
mutual exclusivity that exists between the instant rule making
9411141B) which, inter alia, proposes to relocate the trans-
mitter of Station KNAX(FM) from its licensed site at
Meadow Lakes, California, to an area closer to Fresno,
utilizing coordinates 36-55-48 and 119-38-27, from which
an improved service could be provided to the residents of
Fresno and Madera Counties. EBE asserts that the pro-
posed relocation of Station KNAX(FM) would result in the
provision of a 70 dBu signal to 551,534 persons, represent-
ing a gain of + 276%. Correspondingly, EBE advises that
operation from its proposed site would provide a net gain
in area coverage of 7% within its 60 dBu contour. EBE
offers that unless an alternate channel is considered to
accommodate the petitioner's desire to provide an addi-
tional FM service to Kerman, it will effectively preclude
Station KNAX(FM) from regaining the degree of service it
once provided to Fresno.3 In order to provide the opportu-
nity for a second local FM service at Kerman, EBE offers
that Channel 237A can be allotted to Kerman consistent
with the requirements of Section 73.207(b) of the Commis-
sion's Rules, provided the transmitter is sited 11.0
kilometers southwest of the community.
4. EBE asserts that consideration of an alternate channel
and site from that proposed in the ,Voiice is consistent with
the Commission's stated policy of attempting to eliminate
conflicts between a rulemaking petition and a later-filed
FM application where possible to do so without prejudice
to the affected parties, citing Conflicts Between Applications
and Petitions for Rulemaking to Amend the FM Table of
Allotments ("Conflicts"), 8 FCC Rcd 4743, 4745 N.12
(1993). EBE remarks that consideration of Channel 237A
in lieu of Channel 252A at Kerman will not prejudice
either party. Rather, EBE remarks that it will simply re-
move the existing conflict with its pending modification
application, thereby providing Station KNAX(FM) an op-
portunity to provide an improved service to the residents
of Fresno, while simultaneously accommodating the inter-
ests expressed in providing a new FM service at Kerman.
5. In responsive comments, petitioner and Southeast
Asian each object to EBEs request to allot Channel 237A
to Kerman instead of Channel 252A. alleging that the
channels are not equivalent. Southeast Asian avers that the
11 kilometer site restriction southwest that is required to
accommodate Channel 237A would amount to an ineffi-
cient use of the spectrum compared to the minimal site
restriction demanded for Channel 252A. Petitioner believes
that as EBE is attempting to impose both a site restriction
and an alternate channel at Kerman, its proposal is in-
consistent with the Commission's stated policy in Conflicts,
petition and EBE's subsequently filed minor change application,
which is discussed infra at paragraphs 3-4.
EBE advises that it previously operated from a site within
Fresno until forced to move approximately six years ago, at
which time it relocated to an antenna farm 49 kilometers
northeast of Fresno. However, EBE remarks that service to
Fresno from its currently licensed site has proven to he mini-
mal. While the continued operation of Station KNAX(FM) at its
licensed site at Meadow Lakes enables Channel 252A to be
considered for allotment to Kerman, as recognized by the site
restriction proposed for Channel 252A in the Notice, EBE avers
that unless another channel is considered at Kerman, that allot-
ment would forever preclude Station KNAX(FM) from provid-
ing an improved service to Fresno from the site specified in its
modification application.
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DA 96-174
Federal Communications Commission Record
11 FCC Red No. 6
supra.4 Petitioner avers that EBE's proposal, if adopted, will
prejudice future applicants at the underserved community
of Kerman in favor of Fresno, which contains a multiplic-
ity of licensed aural services.
6. In further support of its position, petitioner claims
that the site restriction for Channel 237A will affect the
financial viability of the proposed new Kerman facility in
several ways. Not only will it greatly reduce the flexibility
of applicants to secure a transmitter site, and add signifi-
cantly to the costs of erecting the necessary physical struc-
tures, but would reduce the potential population coverage
as the specified site is in a more sparsely populated area.
Petitioner claims that conversely, a transmitter for Channel
252A could be located on one of two existing tower struc-
tures in a more densely populated area, thereby eliminat-
ing many extra costs that would be required for Channel
237A, and would enable a future station to provide service
to a larger segment of the population. Moreover, petitioner
claims that environmental considerations do not surround
Channel 252A. Specifically,. petitioner asserts that the area
indicated to accommodate a transmitter for Channel 237A
may be environmentally sensitive, referring to the Califor-
nia Native Species Act, as the reference coordinates are
adjacent to the Kerman Ecological Reserve, a refuge for
several endangered species such as the San Joaquin Kit
Fox, Bluntoose Leopard Lizard, Fairy Shrimp, and the
Fresno Kangaroo Rat, all of which are Federally protected.
Petitioner adds that not only would the restricted area for
Channel 237A subject potential applicants to land use re-
strictions, zoning issues, and environmental concerns, but
it would also result in the loss of agricultural land produc-
tion in violation of the State of California's EnvironmentalQuality Act, and would place another aviation hazard in an
area used extensively by aircraft for crop dusting.
7. Petitioner remarks that while it opposes consideration
of Channel 237A at Kerman for the reasons enumerated
above, it would not object to the substitution of an al-
ternate FM channel at Kerman had one been available that
equalled its original proposal. Petitioner urges that as its
proposal would provide a new local transmission service to
Kerman, the public interest would he better served by
allotting FM Channel 252A to Kerman, rather than afford-
ing protection to EBE's application, as Station KNAX(FM)
is said to provide the required coverage of the City of
Fresno from its licensed site.5
8. Preliminarily, we address the petitioner's and South-
east Asian's objections to the consideration of alternate
Channel 237A at Kerman. We disagree with the petition-
er's view that the suggested use of alternate Channel 237A
at Kerman is inconsistent with the Commission's stated
policy in Conflicts, supra, since it also requires a site re-
To substantiate its assertion, petitioner quotes n.12 of Con-flicts, supra, as follows:
'The staff will also attempt to resolve conflicts between a
rulemaking petition and a later-filed FM application by
imposing a site restriction on the proposal in the petition,
or by allotting an alternate channel for that proposed in
the petition, whenever it is possible to do so without
prejudice to a timely filed FM application or rulemaking
petition."
Petitioner's comments also address the past engineering stud-
ies performed by EBE to demonstrate compliance with Section
73.315 of the Commission's Rules with respect to Fresno from
striction. Petitioner appears to apply a literal interpretation
to our cited policy. The Conflicts item should not be
construed as narrowly applying the Commission's remedial
measures to eliminate inconsistencies between coordinates
specified by applicants and those designated in rulemaking
proceedings by modifying the rulemaking proposal to
specify either an alternate site or channel where possible.
Rather, it has been, and continues to be the Commission's
policy to consider whichever allotment plan it determines
to be more conducive to serving the public interest. It is
not required to allot the preferred numerical channel of
any specific party. See the Appendix to the Notice. More-
over, while the Commission endeavors to allot the least
restrictive channel possible, we must be guided by the
overall public interest benefits to be attained by the propos-
als under consideration.
9. In this instance, we believe that Channel 237A is
equivalent to Channel 252A for allotment purposes. We
realize that while no two channels are ever exactly the
same, the Commission considers channels to be equivalent
provided they are of the same class distinction, would
comply with the minimum spacing criteria, and would
enable a broadcast facility to provide 70 dBu coverage to
the proposed allotment community. See Vero Beach, Flor-
ida, 3 FCC Rcd 1049 (1988), rev, denied, 4 FCC Rcd 2184,
2185 (1989). Additionally, we indicated in Vero Beach that
we would consider other pertinent factors which might
preclude a finding of channel equivalency. Such factors
could include environmental effects or aeronautical
hazards which would prevent a station from constructing
on that channel. While petitioner claims that the area to
accommodate Channel 237A is near the Kerman Ecological
Reserve, perhaps invoking environmental and zoning is-
sues, as well as possibly invoking an air hazard concern, we
find those allegations are speculative. Petitioner has pro-
vided no showings or testimony from local zoning officials
or environmental groups to substantiate that a station
could not be constructed on Channel 237A within the fully
spaced area specified in EBE's comments to accommodate
the allotment. In any event, environmental assessments
may be explored at the application level pursuant to the
requirements of Sections 1.1307 and 1.1308 of the Commis-
sion's Rules to determine whether proposed facilities at a
particular site may significantly affect the environment.
Moreover, petitioner failed to present documented infor-
mation indicating that there are no suitable sites available
to accommodate a tower for Channel 237A consistent with
applicable FAA criteria. The determination as to the avail-
ability of a transmitter site to comply with FAA technical
considerations may he explored at the application stage
the currently licensed site of Station KNAX(FM) at Meadow
lakes. Although petitioner urges that EBEs current claim of
dissatisfaction with the coverage provided to Fresno from that
site is an attempt to attain greater interference protection via its
application while simultaneously attempting to impede the ad-
dition of another aural broadcast service, these are application
matters and need not be considered here. Moreover, as EBE has
suggested an alternate Class A channel for allotment to Kerman,
we do not view the filing of its modification application as an
attempt to hinder the addition of a new local transmission
service to that community.
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11 FCC Red No. 6
Federal Communications Commission Record DA 96-174
when the actual site proposal is before the Commission for
consideration. See West Palm Beach, Florida, 3 FCC Rcd
5810 (1988); recon. denied, 6 FCC Rcd 6975 (1991).
10. With respect to the petitioner's allegation concerning
the impact the alternate channel would have on the finan-
cial viability of the proposed new Kerman facility, eco-
nomic feasibility issues are not presently considered by the
Commission in the allotment or licensing context. See FM
Channel Assignments; Policies Regarding Detrimental Effects
of Proposed New Broadcast Stations on Existing Stations, 3
FCC Rcd 638 (1988), recon. denied, 4 FCC Rcd 2276
(1989); Cheyenne, Wyoming, 8 FCC Rcd 4473 (1993); and
Albion, Nebraska, 10 FCC Rcd 3183 (1995), rev, denied, 10
FCC Rcd 11927 (1995).
ii. In consideration of the above, we believe that the
public interest would be served by allotting Channel 237A
to Kerman as that community's second local transmission
service, since petitioner has not sufficiently demonstrated
the superiority of Channel 252A, as proposed in the Notice.
Moreover, the allotment of Channel 237A to Kerman will
enable EBE to relocate the transmitter for Station
KNAX(FM) to the site designated in its modification ap-
plication (BPH-941 1 141B) at coordinates 36-58-48 and
119-38-27, thereby affording it the opportunity to provide
an improved service to Fresno and its environs.
12. Channel 237A can be allotted to Kerman consistent
with the minimum distance separation requirements of
Section 73.207(b) of the Commission's Rules provided the
transmitter therefor is located at least 11.7 kilometers (7.3
miles) southwest of the community, utilizing coordinates
36-41-00 and 120-10-48. The site restriction is required to
avoid a short spacing to the licensed site of Station
KJFX(FM), Channel 239B, Fresno, at coordinates 36-56-55
and 119-29-09.
13. Accordingly. pursuant to the authority contained in
Sections 4(i), 5(c)(1), 303(g) and (r) and 307(b) of the
Communications Act of 1934. as amended, and Sections
0.61. 0.204(b) and 0.283 of the Commission's Rules. IT IS
ORDERED, That effective April 18, 1996. the FM Table of
Allotments. Section 73.202(b) of the Commission's Rules,
IS AMENDED with respect to Kerman. California. as fol-
lows:
City
Channel No.
Kerman, California
232A. 237A
14. The window period for filing applications for Chan-
nel 237A at Kerman. California, will open on April 18,
1996 and close on May 20, 1996.
15. IT IS FURTHER ORDERED, That this proceeding
IS TERMINATED.
16. For further information concerning the above, con-
tact Nancy Joyner, Mass Media Bureau, (202) 418-2180.
Questions related to the window application filing process
for Channel 237A at Kerman. California. should be ad-
dressed to the Audio Services Division. FM Branch. Mass
Media Bureau, (202) 418-2700.
FEDERAL COMMUNICATIONS COMMISSION
John A. Karousos
Chief, Allocations Branch
Policy and Rules Division
Mass Media Bureau
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