9 FCC Red No. 22 Federal Communications Commission Record FCC 94-257 Before the Federal Communications Commission Washington, D.C. 20554 In re Petition of Polnet Communications. Ltd. licensee of WKTA(AM), Evanston. Illinois For Reconsideration of Public Notice Announcing Interference Improvement Factors for Stations Proposing to Migrate to the AM Expanded Band MEMORANDUM OPINION AND ORDER Adopted: October 7, 1994; Released: October 13, 1994 By the Commission: Commissioner Barrett issuing a con curring statement. 1. The Commission has before it a petition filed by Polnet Communications, Ltd., licensee of WKTA(AM). Ev anston, Illinois ("Polnet"), requesting reconsideration of the December 3, 1993 action of the Chief, AM Branch, acting pursuant to delegated authority, announcing inter ference improvement factors for stations that have peti tioned to migrate to the AM expanded band. 1 Specifically, Polnet contends the staff erroneously interpreted Section 73.35 of the Commission's rules, which sets forth the for mula for calculating improvement factors for prospective migrators to the expanded band. See 47 C.F.R. §73.35. Polnet further contends that the asserted error resulted in WKTA(AM) being credited with a lower than warranted improvement factor, adversely affecting WKTA(AM)'s eli gibility to migrate to the expanded band. 2. Background. In the AM Improvement Order, supra, the Commission sought to transform and revitalize the AM broadcast service by adopting revised AM technical criteria, including rules to open ten newly available frequencies in the expanded band to those AM stations that significantly contribute to congestion and interference in the existing band.2 In order to strictly manage migration to maximize the interference reduction benefits of each expanded band allotment awarded, the Commission established an order of priority for migration by existing licensees to the expanded band.3 Daytime-only stations located in communities of more than 100,000 and within a Class A station's primary service area receive top priority for slots in the band if they notify the Commission that they seek to provide full-time service.4 The next priority goes to full-time licensees who would most reduce interference and congestion by moving to the expanded band. The final priority belongs to other daytime-only stations. For ranking applicants within the respective full-time and daytime priorities, the Commission adopted improvement factors consisting, where applicable, of the sum of two ratios, one for nighttime interference- caused area to nighttime interference-free service area and one for daytime interference-caused area to daytime inter ference-free service area. See AM Improvement Order, 6 FCC Red at 6308-6311; see also 47 C.F.R. §73.35. The larger the improvement factor, the greater the improve ment in the existing band if the station causing the inter ference migrates to the expanded band. Pursuant to 47 C.F.R. §73.30. licensees seeking to migrate to the expanded band have filed petitions to migrate, and the subject sta tions have been ranked according to their improvement factors within each of the three categories of stations eli gible to migrate to the expanded band.5 Specifically, sta tions in priority one were ranked 1 to 4, stations in prior ity two ranked 5 to 332. and stations in priority three ranked 333 to 688." WKTA(AM). a daytime-only station, received a ranking of 640 based on an interference im provement factor of 0.0099. 3. Polnet's Contentions. Polnet requests that the Commis sion recalculate the improvement factors in view of an asserted error in excluding multiple-station interference areas from the daytime caused-interference areas of pro spective migrators. Polnet contends that in calculating the 1 See FCC Announces the Interference Improvement Factors for Stations which have Petitioned to Migrate to the Expanded Broadcast Band, Public Notice (December 3. 1993). The ex panded band consists of ten AM broadcast channels allotted by the Commission to the 1605-1705 kHz band. See In Review of the Technical Assignment Criteria for the AM Broadcast Service, 6 FCC Red 6273 (191), recon. granted inb pan and denied in pan. 8 FCC Red 3250 (1993) (hereinafter AM Improvement Order]. Polnet filed a petition to migrate to the expanded band on June 30, 1993. WKTA(AM) is a Class D AM station licensed to operate on the frequency 1330 kHz with operating power of 5000 watts daytime and 17 watts nighttime using a directional antenna system during daytime hours only. Petitions requesting reconsideration of final actions taken pursuant to delegated authority may be referred by such authority to the Commission, as in the instant case. See 47 C.F.R. §l.K)6(a)(l). 2 The Commission found that migration to the expanded band would produce a general reduction in interference levels in the existing AM band in furtherance of the goal for existing band stations of full-time operation, competitive technical quality, wide area daytime coverage, and nighttime coverage at least 15% of daytime coverage. See AM Improvement Order, 6 FCC Red at 6303, n.41. ' The Commission restricted eligibility for expanded band authorizations to existing AM licensees in order to redress unique technical problems present in the AM service, but noted that its action should not be taken to suggest any generalized Commission policy favoring existing licensees over new entrants in other services where new or expanded opportunities may arise. See AM Improvement Order, 6 FCC Red at 6276. 4 See 8 FCC Red at 3255. This priority is based on Section 331(b) of the Communications Act of 1934, as amended, which reflects a legislative determination that enabling such stations to offer full-time local service would be a significant benefit to the public interest. See 47 U.S.C. §331(b); see also In re Amendment of Section 331 of the Communications Act of 1934 ("Policv Statement"), 1 FCC Red 4905 (1992). 5 See Federal Communications Commission To Open "Filing Window" on AM Expanded Band Applications, Public Notice (April 15. 1993). 6 Daytime-only stations having an improvement factor equal to 0.0 are not eligible to migrate to the expanded band. See AM Improvement Order. 6 FCC Red at 6311. n.50. 6129 FCC 94-257 Federal Communications Commission Record 9 FCC Red No. 22 composite degree of service lost by co-channel and adja cent-channel stations as a result of interference caused by a prospective migrator, and, specifically, the amount of inter ference improvement that would be obtained through mi gration of that station to the expanded band, the staff improperly excluded from the calculation of interference caused by the prospective migrator those areas in which the migrator is not the exclusive contributor of interfer ence. Polnet maintains that this methodology contravened Section 73.35 of the Commission's rules, and that the asserted error resulted in unrealistically small improvement factors for stations such as WKTA(AM). 7 4. Discussion. The AM Improvement Order sought to re store the overall integrity of the AM service by reducing the interference with which AM broadcasters must contend in their primary service area. See AM Improvement Order, 6 FCC Red at 6276. Consistent therewith, Section 73.35 of the Commission's rules provides, in relevant part, that in calculating the daytime improvement factor of an AM station petitioning to migrate to the expanded band, "the composite amount of service lost by co-channel and adja cent channel stations each taken individually, that are af fected by the subject station, excluding the effects of other assignments during each study, will be used as the numera tor of the daytime improvement factor. The denominator will consist of the actual daytime service area (0.5 mV/m) less any area lost to interference from other assignments." See 47 C.F.R. §73.35.48 Polnet contends that the language of Section 73.35, specifically the phrase "excluding the effect of other assignments," plainly requires that the Com mission determine the entire area of interference caused by a prospective migrator to co-channel and first-adjacent sta tions, excluding the effects of other stations causing inter ference within that area, and that, accordingly, WKTA(AM)'s interference-caused area, and hence its im provement factor, should be greater.9 Thus, Polnet would have us credit WKTA(AM) with reducing interference by migrating, even though the areas in which WKTA(AM) would no longer cause interference would continue to receive interference from other stations. 5. The staff interpreted Section 73.35 correctly. In the AM Improvement Order, 6 FCC Red at 6310. the Commis sion adopted a nighttime interference factor along the lines proposed in its earlier Notice of Proposed Rulemaking, 5 FCC Red 4381 (1990). The Commission also decided to adopt a daytime improvement factor, and stated "... we are adopting the same approach for calculating the daytime improvement factor that we proposed in the Notice for the nighttime ... . This method is a logical extension of the nighttime interference factor." Id. In calculating a prospec tive migrator's nighttime interference improvement factor, Section 73.35 requires consideration of the contribution of all interfering nighttime stations and the migrator is cred ited only with areas from which it would remove interfer ence and which do not receive interference from other stations. The staff's interpretation of Section 73.35 resulted in a similar manner of calculating the daytime improve ment factor, and was fully consistent with maximizing in terference reduction, which was one of the primary objectives of the AM Improvement Order. 10 6. The phrase "excluding the effect of other assign ments." as used in Section 73.35 means that in calculating the total area of interference caused to co-channel and first-adjacent channel stations by a prospective migrator, the part of that area receiving interference from other assignments should be excluded. Expanded band improve ment factors are based on two distinct considerations: (a) service area lost by other stations due to interference caused by the present facilities of a prospective migrator, and (b) present service area of the prospective migrator. See 47 C.F.R. §73.35. The Commission's rules define an AM station's primary service area as that area in which the groundwave is not subject to objectionable interference or objectionable fading. See 47 C.F.R. §73.14. Upon comple tion of the channel change by such a migrator, the service areas of existing band co-channel and adjacent channel stations in which the migrator currently causes objection able interference would be truly interference-free. In con trast, if the improvement factors were to include areas in which a migrator's co-channel and first-adjacent channel stations receive objectionable interference from stations other than the migrator, the interference reduction benefit of a migrator's proposed migration in a multiple-station interference area would be marginal at best, as the co- channel and first-adjacent channel stations would continue to receive objectionable interference in the relevant area from other assignments. Excluding multiple-station inter ference areas from a prospective migrator's caused-interfer- ence area is also consistent with the prescribed method for calculating the migrator's actual daytime service area ("ser vice-provided"), which excludes any area lost to interfer ence from other assignments. See 47 C.F.R. §73.35. Notably, the service-provided component of the daytime improvement ratio only credits the prospective migrator with that area of interference improvement actually af forded by its proposed migration. 7 Polnet asserts that had the Commission included multiple station interference areas in the determination of daytime im provement factors, WKTA(AM)'s improvement factor would in crease from 0.0099 to 1.9942 and the station's corresponding ranking would rise from 640 to 361. Polnet concedes, however, that this recalculated ranking assumes the ranking of no other station would change. However, because the rankings of other stations would need to be recalculated if WKTA's petition were granted. WKTA(AM)'s recalculated ranking would depend upon the recalculated rankings of all other prospective migrators. 8 The Commission declined to consider the effects of stations operating on second and third-adjacent channels both because the rules regulating second and third-adjacent channel spacings permit such stations to operate close to each other and because such rules are intended to control receiver cross-modulation and inter-modulation problems and do not lend themselves to accurate determinations of areas of interference. See AM Im provement Order, b FCC Red at 6310, para. 122. The degree of interference used in calculating an improvement factor is ob tained from determining the size of the area experiencing the interference and does not specifically take into account the population within the area affected. Id. at 6 FCC Red at 6316, para. 139. See, note 7, supra. 10 The Commission specifically noted that "[m|igration of AM stations from the existing band should reduce interference and congestion in the existing band and should offer a prompt method for establishing service in the expanded band." See AM Improvement Order, 6 FCC Red at 6302-6303, para. 99. 6130 9 FCC Red NO. 22 Federal Communications Commission Record FCC 94-257 7. Based on the foregoing, we affirm the staff calculations of interference improvement factors as released on Decem ber 3, 1993 action. Accordingly, the petition for reconsider ation filed by Polnet Communications IS DENIED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary 6131 FCC 94-257 Federal Communications Commission Record 9 FCC Red No. 22 CONCURRING STATEMENT OP COMMISSIONER ANDREW C. BARRETT In Re: Petition of Polnet Communications, Ltd., licensee of WKTA(AM), Evanston, Illinois for Reconsideration of Public Notice Announcing Interference Improvement Factors for Stations Proposing to Migrate to the AM Expanded Band Pursuant to today's action, the Commission reaffirms its prior decision regarding interference improvement factors for stations that have petitioned to migrate to the AM expanded band. As a result of my continued misgivings about the decision's potential impact on small radio station businesses, including minority owned stations, I must concur in this decision. 1 While I support the Commission's goal to address the technical problems of AM service, I renew my concern about the inequities of the Commission's extension of priority status, reportedly founded in sound public policy, to certain entities in the expanded band. Meritorious arguments for equitable treatment that were substantiated by statistical evidence and presented by small and minority owned business, have been and continue to be ignored. Today's decision only serves to heighten my concerns about the manner in which the Commission determines the fate of these businesses by exacting arbitrary regulatory treatment. Therefore, as it proceeds with the implementation of the AM expanded band policies, I urge the Commission to revisit its impact on small and minority-owned businesses. 1See. Concurring statement of Commissioner Andrew C. Barrett, Report and Order, 6 FCC Red 6468 (1991) ; See also. Concurring Statement of Andrew C. Barrett, Second Report and Order. 8 FCC Red 3250 (1993). 6132