BOBFILNER 51 ST DISTRlCT, CALIFORNIA VETERANS' AFFAIRS COMMITTEE RANKING MEMBER TRANSPORTATION AND INFRASTRUCTURE COMMITTEE AVIATION HIGHWAY AND TRANsIT WATER RESOURCES AND ENVIRONMF.NT EcONOMIC DEVELOPMENT, PUBUC BUIUliNGS, AND EMHROENCY MANAGEMENT CONGRESS OF THE UNITED STATES HOUSE OF REPRESENTATIVES 2428 RAYBURN HOUSE OFFICE BUILDING WASHJNCiTON. DC 20nS TEL: (202) 225-8045 FAX: (202) 225-9073 333 F STREET, SUITE A CHULA VISTA, CALIFORNIA 91910 TEL: (619) 422-5963 FAX: (619) 422-7290 1101 AIRPORT ROAD, SUITE 0 IMPERIAL, CALIFORNIA 92251 TEL: (760) 355-8800 FAX: (760) 355~8802 website: www.house.gov/filner February 7,2012 Julius Genachowski Chairman Federal Communications Commission Room 8-C453 445 12th St, SW Washington, DC 20554 Dear Mr. Genachowski: I recently met with members of Activist San Diego (ASD) and they informed me that their application for an FM radio station (200 71022AEZ; Facility ID: 176023) in Ramona, California was awarded a Federal Communications Commission (FCC) license. As you can imagine, they were surprised to learn that their application was suddenly dismissed. I Responding to FCC requests, ASD submitted a technically amended application with a contour design by Brown Broadcast Services that avoids interference with d0rlestic andMexican radio stations while increasing the coverage for the people irl'Ramona. After ASD submitt~d the corrections, they were infonned by the FCC that their application was dismissed asitstill overreached and the ratio of maxintum power to the location exceeded thenlaximum of 15dB. ASD informed me that the highly experienced and FCC qualified design engineer (Michael Brown ofBrown Broadcasting) could not have anticipated such a dismissal since this was a minor technical issue. ASD immediately filed an appeal for reconsideration and followed all FCC timelines and guidelines. For your convenience, I have enclosed.a copy of the appeal that was SUbmitted. in April 2011. The FCC assured ASD ofa swift and timelyreccmsideration but asiofyet, ASD has not received a response. As you can imagine, there isa dire need fot an FM station in this area as it will provide first non-commercial educational and emergency radio service to thousands of people, including the Los Coyotes Tribe, the Santa Rosa, Cahuilla, Mission, Rincon, Pasqual, Inaja, Barona and Capitan Grande Reservations. PAINTED ON RECYCLED PAPER Julius Genachowski February 7,2012 Page 2 As a member of the San Diego County Congressional Delegation, I am deeply concerned that the dismissal of ASD's application would keep these communities isolated, with limited communications, educational and public information services. As a result, I requestthat the FCC apply clear, fair and pragmatic standards to see if the application can be approved as is. I am sure that ASD is willing to work with you on the design if needed. If you have any questions, please feel free to contact me or Jessica Gomez ofmy staffat (619) 422-5963. OBFILNER ember of Congress CC: Geoffrey Blackwell, Office ofNative Affairs Mignon Clyburn, Commissioner Peter H. Doyle, Chief, Audio Division Greg Guise, Director, Legislative Affairs Robert M. McDowell, Commissioner BF/jg 2603524 Enclosure AOMITTED IN CAI.I ...OANIA -'NO IN THE DISTRICT 0,. CDI.UMBIA MICHAEL COUZENS ATTORNEY AT '-AW 6.36 TELIEC3FtAPH AVENUE, SUITE BaOI OAKLAND, CALIFORNIA 94609 TIEL£PMONI: U510) eSB-7eS4 ,.AX NO. (aIO) ell.....e7...1 April 28, 2011 "'AILING ADDRESS ~OST O""ICI: .OX 3842 OAKLAND, CAt.,IP'O"NIA g4eolil .-mall cuzOlptv.tv www.lptv.tv Bye-mail to james.bradshaw@fcc.gov and by First Class Mail Jim Bradshaw, Deputy Division Chief Audio Division, Media Bureau Federal Communications Commission 445 Twelfth Street S.W. Washington,D,C.20SS4 Ref.: New (FM) Ramona, CA Facility ID No. 176023 Activist San Diego BNPED-20071022AEZ Dear Jim: This office represents Activist San Diego, applicant here. The referenced application was dismissed, by letter over the signature ofRudolfo F. Bonacci, on March 30,2011 ("Letter," Attachment A herewith). The reason was that the justification for waiver of Section 73.S10(b) of the Commission's Rules was deemed insufficient. On Tuesday the applicant's consulting engineer, Michael D. Brown, and I had a conference call with Rudy to try to understand the basis for dismissal. From that call, we believe there was no reason to anticipate the adverse result. Indeed we believe the policy as implemented does not further its apparent purpose. Unfortunately, this constituted the sole opportunity to amend. An application for review would be due tomorrow. We have chosen instead to present you with the facts, and our position, and to ask that Rudy's letter be withdrawn pending further study or (with his advance knowledge) a new amendment. Mr. Brown and I can always stand to improve our practice with sound advice from staff. But in this instance the applicant should not suffer ifour approach was deficient. The proposal is a singleton that will serve four Indian Reservations, with the strong support of the tribes involved. The applicant has been adamant that we try everything to satisfy the staff and get this new service underway ifwe can. ,LThe Section 73.510(b) Violation. Normally antennas will not be permitted with a difference in gain ofmore than 15 Jim Bradshaw April 28, 20II Page two. dB from the maximum direction to the minimum direction, Section 73.510(b) of the Rules. This is a sound rule, because highly directive arrays can be hard to keep in spec at times, and because it preserves the overall integrity of the allotment scheme for the reserved band. (A similar rule obtains in the non-reserved band.) An exception is recognized where more directivity is needed to protect a Mexican allotment (or station) because of intervening terrain, or very broadly in cases where "terrain may present a problem due to signal reflection". The directional antenna ("D/A") proposed here has a 16.9 dB null along the 110 to 120 radials to protect the full-class-equivalent facilities of XHSOL, Mexicali, MX. The Letter notes Mr. Brown's statement that reflection due to terrain is a concern in this case, where there are several ridges and peaks within a few hundred meters of the transmitter having "significant potential to cause reflection and multipath in the community of license and beyond." Treaties of course are the supreme law of the land, under Article VI, Clause 2, of the U.S. Constitution. Two reasons were cited for rejecting the proposal under the recognized Mexican Treaty exception. First, "Activist has not sufficiently demonstrated that signal reflection due to the terrain would be a problem." If that is the case, the deficiency should have been cured by a request for supplemental information. Particularly where the derogation is tiny, 16.9 dB versus 15.0 dB, the recourse to dismissal without leave to amend appears harsh. The second reason was that "Our study shows that the directional antenna is required to protect other domestic stations," i.e. not just the affected Mexican allotment We did not understand this part of the decision until the conference call with Rudy. Apparently, staff's practice in these cases (greater than IS dB), is to run an interference check in relation to domestic facilities, with all the same parameters, but with an omni­ directional antenna substituted for the DIA. Ifso, respectfully, we believe it cannot be justified. In this case, all domestic stations were protected, using nulls not in excess of 13.3 dB. Such ratios are routinely allowed and do not require any waiver or Mexican Treaty exception. The ruling here appear to be, any applicant seeking to protect Mexico with a ratio in excess of 15 dB by that fact alone relinquishes it right under established rules to use any directivity whatsoever to protect neighboring domestic facilities. There is no such express rule and public policy would not favor it. Directional antennas are allowed to maximize spectrum use in the crowded, first-come environment. Suspension ofthe rule whenever a Mexican protection is involved serves no purpose. Here again, in the absence of stated guidelines, the dismissal without recourse seems drastic. Jim Bradshaw April 28, 2011 Page three. To date we have been unable to find any licensed domestic station along the Mexican border that used a D/A to protect both domestic and foreign stations, and has a D/A towards Mexico that exceeds 15 dB. However, the Commission has granted several waivers which protect domestic stations, with nulls exceeding 15 dB.ill Finally, there are no manufacturing or stability issues. In Centennial Wireless, Inc., 46 RR2d 886 (1979) the Commission concluded that a stability question does not arise for antennas using an 18 dB null. However, out ofan abundance ofcaution, Mr. Brown obtained a signed letter from Shively Labs indicating that they could comply with the proposed pattern using a 6016 panel antenna. Shively has successfully designed many directional antennas with nulls exceeding 20 dB. 2. Withdrawal Q.f the Letter and an Opportunity for Corrective Amendment Would Serve the Public Interest. The applicant and Mr. Brown had the best intention of abiding by all the Rules and Regulations and the terms of the US-Mexican agreement, providing a comprehensive 30-page engineering exhibit in the application. The reasons set forth in the Letter do not appear to be documented sufficiently to establish any bright line test for applicants or for the engineering community. Whatever standard will be finally imposed, we believe they can be accommodated with small changes to achieve full compliance. The proposed uncontested singleton provides first NCE service to a remote area that is primarily inhabited by people living within Indian Reservations (Attachment B). Applicant has been partnered with the Warner Spring Tribe (Los Coyotes Reservation) with plan to build a studio on the reservation. The proposed 60 dBu contour will provide service to the Los Coyotes, La Jolla, Santa Ysabel, and Meda Grande Reservations. ill--KLAX: 15 dB exceeded by 0.918 db: This facility is short spaced. D/A used to provide protection to K.XRV. Without the D/A there would be prohibitive overlap. --KTXI: 15 dB exceeded by 1.654 db: This facility is an NCE. D/Ahas a >15 dB null directly employed for the purpose ofprotecting KSYM-FM. Without the D/A there would be prohibited overlap. --KPWR: 15 dB exceeded by 2.589 dB: This facility is short spaced. D/A is used to provide protection to short spaced stations KGMX, KRAB, and KRAZ. Without the D/A there would be prohibited overlap. Jim Bradshaw April 28, 2011 Page four. The proposed signal will also be receivable in the Santa Rosa, Cahuilla, Mission, Rincon, Pasqual, Inaja, Barona, and Capitan Grande Reservations. An unrecoverable dismissal of this application will be a major loss to all the tribes who currently have no NCE service and limited/poor access to internet. For these reasons, I request that the Letter letter be withdrawn and the application restored to pending status, so that further discussion may be had and a new, complete and acceptable engineering proposal may be submitted. cc. Rudolfo F. Bonacci cc. Geoffrey Blackwell Attachment A. 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