Federal Communications Commission FCC 17-160
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Cochise Broadcasting LLC
Application for Minor Modification of Station 
KTBX(FM), Tubac, Arizona
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File No. BPH-20140709AAK
Facility ID No. 171024
MEMORANDUM OPINION AND ORDER
Adopted:  December 5, 2017 Released: December 5, 2017
By the Commission:
1. In this Memorandum Opinion and Order, we deny the application for review filed by 
Cochise Broadcasting LLC (Cochise) on August 17, 2017 (Application for Review).  Cochise seeks 
review of a July 18, 2017, letter decision by the Audio Division, Media Bureau (Letter Decision).
1
  In the 
Letter Decision, the Bureau upheld on reconsideration the dismissal of the above-referenced application 
for minor modification (Modification Application) of station KTBX(FM), Tubac, Arizona (Station).  The 
Bureau determined, after consultation with the International Bureau, that the Modification Application 
violated the terms of the 1992 Agreement Between the Government of the United States of America and 
the Government of the United Mexican States Relating to the FM Service in the Band 88-108 MHz, 
August 11, 1992 (USA-Mexico Agreement).
2
  
2. Background.  In the Modification Application, Cochise proposed to change the Station’s 
transmitter location, effective radiated power, and antenna height.  After providing Cochise with an 
opportunity to file a curative amendment, Bureau staff dismissed the Modification Application because 
the proposal would cause overlap between the Station’s proposed interfering signal contour and the 65-
kilometer protected contour of the Channel 263B allotment at Magdalena, Sonora, Mexico, in violation of 
Article 7, Section 7.3, of the USA-Mexico Agreement.
3
  On reconsideration, the Bureau upheld this action, 
stating that the Modification Application, if granted, would create areas of interference within the borders 
of Mexico and declined to request concurrence from Mexico for such interference.  The Bureau also 
explained that the Modification Application was not “similarly situated” to the applications Cochise cited 
because the cited applications all involved interference occurring within the United States and not within 
Mexico.
4
In the Application for Review, Cochise acknowledges that the proposed KTBX contour would 
overlap the protected contour of Channel 236B at Magdalena, Sonora, Mexico within the borders of 
Mexico, but argues that the application should have been referred to Mexico for concurrence rather than 
dismissed by the Audio Division.
5
  Cochise reiterates its argument raised before the Bureau that the 
                                                     
1
Susan A. Marshall, Esq., Letter Order, Ref. No. 1800B3-CEG (MB July 18, 2017) (Letter Decision). 
2
USA-Mexico Agreement, Article 7, Section 7.3, available at http://transition.fcc.gov/ib/sand/agree/files/mex-
bc/fmbc.pdf (last visited Oct. 17, 2017) (establishing that modification applications “shall be subject to coordination 
between Administrations and shall only be accepted when its interfering contour does not overlap the protected 
contours of existing allotments and assignments of the other country, whose protected contours are to be calculated 
based upon their maximum permitted parameters . . ..”).
3
Ted Tucker, Letter, Ref. No. 1800B3-AED (Dec. 21, 2015).
4
Letter Decision at 2.
5
Application for Review at 2-3.
Federal Communications Commission FCC 17-160
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Bureau treated the Modification Application differently than other, similarly-situated applicants, in 
violation of the D.C. Circuit’s holding in Melody Music.
6
  Cochise contends that the Bureau failed to 
provide an adequate rationale for “departing from the treatment which it has accorded previous applicants 
over a number of years” and failed to explain the underlying rationale for making a factual distinction 
between overlap caused within the United States and overlap caused within the borders of Mexico.
7
3. Discussion.  Upon review of the Application for Review and the entire record, we 
conclude that Cochise has not demonstrated that the Bureau erred.  The USA-Mexico Agreement states 
that a proposed modification to the Plan of Allotments and Assignments which does not conform to the 
specified Tables in the agreement “shall be subject to coordination between Administrations and shall 
only be accepted when its interfering contour does not overlap the protected contours of existing 
allotments and assignments of the other country.”
8
  The USA-Mexico Agreement does not contemplate 
that either administration will commence the Notification Procedures
9
  for purposes of considering a 
proposal that fails to meet the terms of acceptance specified in the Agreement, i.e., a proposed 
modification “shall only be accepted when its interfering contour does not overlap the protected contours 
of existing allotments and assignments of the other country.”  By Cochise’s own admission, the 
Modification Application includes an overlap to the protected contours of existing allotments and 
assignments of Mexico within the borders of Mexico.
10
  Because the proposal would violate the respective 
allotment plans as set forth in the USA-Mexico Agreement, the Bureau properly decided the matters 
raised, and we uphold its decision to dismiss Cochise’s application for minor modification.
4. We reject Cochise’s argument that dismissal of its application for minor modification is 
inconsistent with prior Commission policies and violates the D.C. Circuit’s decision in Melody Music.
11
  
Here, the instances of allegedly inconsistent treatment of other applicants were all decided by the Media 
Bureau’s Audio Division and were not challenged before the Commission.
12
  Thus, Cochise’s Melody 
Music argument ignores D.C. Circuit precedent “that an agency is not bound by the actions of its staff if 
the agency has not endorsed those actions.”
13
  The prior treatment of other applicants by the Audio 
Division is not before us for review in this proceeding, and we accordingly express no opinion on the 
ultimate conclusions reached in those staff determinations.  We do note, however, that each of the other 
applicants about which Cochise complains involved an application that was not similarly situated to the 
proposal submitted by Cochise because such applications involved  “’shoulder’ interference
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occurring 
within the United States.”
15
  In contrast, the Audio Division has consistently declined to request Mexican 
                                                     
6
Application for Review at 2 (citing Melody Music, Inc. v. FCC, 345 F.2d 730, 732-33 (D.C. Cir. 1965) (holding 
that the Commission acted arbitrarily and capriciously when it treated two similarly-situated licensees differently 
without an adequate explanation for doing so)).
7
Application for Review at 2-5.
8
USA-Mexico Agreement, Article 7, Section 7.3.
9
Id., Article 8.
10
Application for Review at 2.
11
Application for Review at 3-5 (citing Melody Music, Inc. v. FCC, 345 F.2d 730, 732-33 (D.C. Cir. 1965) (holding 
that the Commission acted arbitrarily and capriciously when it treated two similarly-situated licensees differently 
without an adequate explanation for doing so)).
12
See Application for Review, Engineering Statement (attachment).
13
Comcast Corp. v. FCC, 526 F.3d 763, 769-70 (D.C. Cir. 2008); see also SNR Wireless LicenseCo, LLC v. FCC, 
868 F.3d 1021 (D.C. Cir. 2017),
14
A directional antenna can reduce its effective radiated power (ERP) in a given direction.  The resulting area of 
reduced ERP, or “null,” may appear as a recessed area or indentation in the station’s interfering contour.  The two 
areas of relatively greater ERP that protrude on either side of the null may be referred to as “shoulders.” 
15
Letter Decision at 2.  See also Application for Review, Engineering Statement (attachment).
Federal Communications Commission FCC 17-160
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concurrence for applications that would cause any overlap within Mexican territory.
16
  In any event, as 
indicated above, all we decide here is that Cochise has not demonstrated that the Bureau erred in 
dismissing its application; we do not address those prior applications that are not before us.
5. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 5(c)(5) of the 
Communications Act of 1934, as amended,
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and Section 1.115(g) of the Commission’s Rules,
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the 
Application for Review IS DENIED.  
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
                                                     
16
See, e.g., Iglesia Familiar Nuevo Principio, Letter, Ref. No. 1800B3-TB (MB Dec. 22, 2010) (dismissing File No. 
BNPED-20100226ACP for failure to comply with the USA-Mexico Agreement due in part to prohibited overlap 
within Mexico); First Baptist Church of Hemet, Letter, Ref. No. 1800B3-TB (MB Sept. 13, 2010) (dismissing File 
No. BNPED-20100225AAP for failure to comply with the USA-Mexico Agreement due in part to prohibited overlap 
within Mexico); World Radio Network, Inc., Letter, Ref. No. 1800B3-TB (MB Oct. 29, 2007) (dismissing File No. 
BPED-20070905AAV for failure to comply with the USA-Mexico Agreement due in part to prohibited overlap 
within Mexico).
17
47 U.S.C. § 155(c)(5).
18
47 CFR § 1.115(g).