7 FCC Red No. 3 Federal Communications Commission Record FCC 92-34 
Before the 
Federal Communications Commission 
Washington, D.C. 20554 
In re Application of 
Owen P. Mills & File No. BPH-870330MP 
John A. Borsari 
d/b/a OCEAN PINES 
BROADCASTING ASSOCIATES 
For Construction Permit 
for a New FM Station 
Ocean Pines. Maryland 
Channel 246A 
MEMORANDUM OPINION AND ORDER 
Adopted: January 23, 1992; Released: February 3, 1992 
By the Commission: 
1. The Commission has before it an application for 
review filed by Ocean Pines Broadcasting Associates 
("Pines") on August 10. 1988. seeking review of an action 
by the Mass Media Bureau ("Bureau") which dismissed 
the captioned application and designated for comparative 
hearing ten other mutually exclusive applications for the 
Ocean Pines allotment. Stegus Corporation, 3 FCC Red 
4641 ( 1988). 
2. Engineering study of Pines· application by the Com­
mission staff revealed an error in one of its crucial en­
gineering parameters. In dismissing Pines· application. the 
Bureau stated: 
la discrepancy exists! between the value for the an­
tenna height above average terrain ( HAAT) listed in 
Section V-B. Item 6. of !Pines"! FCC Form 301, and 
the average of the eight radials listed in Section V-B, 
Item 15. Specifically, a HAAT value of 102.6 meters 
is obtained when calculating the HAAT using the 
eight radials as opposed to the HAA T value of 100 
meters listed in Section V-B. Item 6 of !the! applica­
tion. The effective radiated power (ERP) value of 
3.0 kilowatts in combination with the HAAT value 
of 102.6 meters exceeds the maximum permitted for 
a Class A facility pursuant to 4 7 C.F.R. § 73.211. 
Accordingly. [Pines"! application was inadvertently 
Naguabo Broadcasting Company, 3 FCC Red -163-1 
(l988)(Naguabo, Puerto Rico), and Ocean Waves Broadcasting. 3 
FCC Red -1637 ( 1988)(Narragansett Pier. Rhode Island). 
2 Figure I of Pines' exhibit shows the radial data in summary 
form, Figure 2 in tabular form, and Figure 3 in graphic form. 
3 HAA T is determined by subtracting antenna radiation center 
height above mean sea level (RCAMSL) from the average ter­
rain elevation above mean sea level. The average terrain eleva­
tion is computed by adding the average elevation in the 3 to 16 
kilometer range along each radial. then dividing by the number 
of radials used. The sum of average elevation figures submitted 
in Exhibit E-3. Figure 1 of Pines' application is 34.75 meters 
929 
accepted for filing and pursuant to 47 C.F.R. §§ 
73.3564 and 0.283, !Pines"! application will be dis­
missed herein. Cf. Kerrville Radio, 2 FCC Red 3441, 
3442 ( 1987). 
Stegus, at 4641. 
3. In its application for review. Pines first claims that its 
HAAT was computed accurately utilizing proper Commis­
sion methodology. Specifically. Pines argues that it em­
ployed computer-generated average terrain elevations and 
profile graphs, which are permitted by Section 73.312(d), 
and that it excluded from its HAA T calculations the 45, 
90, and 135 degree radials. as required by Section 
73.313(d)(2). because they are located entirely over water 
in the 3 to 16 kilometer range. Thus. Pines claims that by 
calculating its antenna HAAT using the five radials, its 
proposed facility was properly calculated as having an 
HAAT of 100 meters and therefore does not exceed the 
maximum permitted for a Class A facility. Pines also cites 
two Hearing Designation Orders' released on the same day 
as that for Ocean Pines. in which the Bureau concluded 
that applicants had improperly computed their HAATs 
yet were given an opportunity to correct the defect rather 
than be dismissed. Pines concludes that the Bureau there­
fore "acted arbitrarily and capriciously in not affording 
[Pines! the opportunity to file a corrective amendment." 
Petition, at p. 8. 
4. We reject Pines' claim that its antenna HAA T was 
computed in accordance with Commission procedures. 
We agree that use of the computer-generated terrain pro­
file data was permissible under Section 73.312(d) of the 
Rules. However. we believe that its use here caused Pines 
erroneously to exclude three radials from its HAA T cal­
culations. Exhibit E-3 of Pines· application does appear to 
indicate that the site elevations of the 45. 90. and 135 
degree radials in the pertinent 3 to 16 kilometer segments 
is zero feet above mean sea level (AMSL).2 Pines· en­
gineering consultant then apparently assumed that the 
"sea level" reading along those three radials indicated that 
the radials extended entirely over sea water and thus 
excluded them from the HAAT computation. However. 
examination of the contour and topographic site maps. 
submitted with Pines· application as Exhibits E-2 and E-5. 
respectively, indicates that there is in fact land area within 
the 3 to 16 kilometer range and that the 50 uV/m contour 
does not encompass United States land area beyond the 16 
kilometer portion of the radial. Therefore." that part of 
the radial extending from the 3 kilometers sector to the 
outermost portion of land area within the United States 
covered by the radial" should have heen used in comput­
ing Pines· HAAT. See 47 C.F.R. § 73.313(d)(2)(ii). Pines 
failed to do so. and thus computed the HAAT averaging 
five rather than eight radials. 3 The resulting error caused 
( l 14 feet). When divided by 5 (the number of radials errone­
ously used by Pines). the average terrain computes to b.95 
meters (22.8 feet) AMSL; when subtracted from the listed 
RCAMSL of 107 meters (351 feet). the HAA T computes to LOO 
meters (328 feet). However,.when divided by 8 (the number of 
radials which should have been used), the average elevation 
computes to -1.34 meters ( 1-1.25 feet) AMSL. Thus. when sub­
tracted from the 123 meter RCAMSL. Pines' HAAT is. in fact, 
102.b meters (337 feet). which violates Section 73.211. This same 
figure, 102.6 meters, is reached by averaging the eight HAA T 
values listed in Table IA of Pines' engineering report, its "Tab­
ulation of TV/FM Contour Calculations on Channel 246." 
FCC 92-34 Federal Communications Commission Record 7 FCC Red No. 3 
its application to specify facilities greater than the maxi­
mum permitted for Class A stations, in violation of 47 
C.F.R. § 73.211. 
5. Pines cites tw(> contemporaneous Hearing Designation 
Orders in which, it claims, applicants which had errone­
ously omitted certain radials from their HAAT computa­
tions were permitted to amend rather than be dismissed. 
However, we believe that both the rulings and the cir­
cumstances there are clearly distinguishable from those in 
the instant case. In Ocean Waves Broadcasting, 3 FCC Red 
4637 (1988), the Bureau concluded that some applicants 
improperly excluded certain radials and others improp­
erly included radials. That case. however, hinged on the 
interpretation of that portion of Section 73.3 l3(d)(2) of 
the Rules which provides that applicants must include a 
radial when the 3 to 16 kilometer portion lies in whole or 
in part over water if land within the United States bound­
aries is encompassed within the proposed 50 uV/m con­
tour beyond the 16 kilometers portion of the radial in 
question. The applicants in the Narragansett Pier proceed­
ing were therefore given the opportunity to amend be­
cause the Bureau concluded that "§ 73.313(d)[(2)[ is 
ambiguous as to how to interpret whether the 50 uV/m 
contour 'encompasses' land area in the United States and. 
therefore, applicants reading this rule may have failed to 
come to the correct conclusion." 3 FCC Red at 4639. The 
ambiguity presented by that prov1s1on of Section 
73.313(d)(2) does not arise under the facts of the instant 
case because Pines' 50 uV/m contour clearly falls beyond 
United States land. Thus. because Pines' 50 uV/m contour 
falls differently than those of the Ocean Waves applicants. 
Pines' reliance upon Ocean Waves is misplaced. While the 
computations in Ocean Waves are governed by Section 
73.313(d)(2). Pines· are governed by Section 
73.313(d)(2)(ii). which is not ambiguous or unclear. 
6. In the other case relied upon by Pines. the Naguabo. 
Puerto Rico proceeding. one applicant failed to include 
the 135 degree radial in its HAAT calculations. The pre­
dicted 50 uV/m contour of the applicant encompassed the 
American territory of Vieques Island. and thus the radial. 
though entirely over water. should have been included in 
the HAAT computation. In that proceeding. however. it 
was not necessary to conclude that the portion of the rule 
concerning land encompassment beyond the 16 kilometer 
distance was unclear. since the Bureau determined that 
the erroneous HAA T calculation did not result in a pro­
posal which violated our technical acceptance rules.~ 
Naguabo Broadcasting Company, 3 FCC Red at 4635. 
Here, Pines· application violated Section 73.211 of the 
Rules as of the close of the amendment as of right period 
and. therefore. was unacceptable for filing. See Pike Fam­
ily Broadcasting, 6 FCC Red 5552 ( 1991). 
7. In sum. Pines has not demonstrated either that the 
staff erred in returning its application or that it was 
treated differently from similarly situated applicants. 5 Ac­
cordingly. for the reasons set forth above. the application 
for review filed by Ocean Pines Broadcasting Associates 
on August 10, 1988 IS DENIED. 
4 Class A stations in Puerto Rico may operate with 3 kW ERP 
and HAAT of up to 335 meters (1100 feet).See former 47 C.F.R. 
§ 73.21 l(b)(3)(ii). 
930 
FEDERAL COMMUNICATIONS COMMISSION 
Donna R. Searcy 
Secretary 
5 See generally New Orleans Channel 20, Inc. v. FCC. 830 F.2d 
361 (D.C. Cir. 1987) (Commission discretion in appraising fac­
tual differences).