Federal Communications Commission
Before the
Federal Communications Commission
Washington, D.C. 20554
FCC 97-199
In re: Application of
Radio Ingstad Minnesota, Inc.
For License to Cover Changes in
the Facilities of Station KMFX(FM),
Lake City, Minnesota
Petition for Reconsideration
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File No. BLH-93031OKC
MEMORANDUM OPINION AND ORDER
Adopted: June 5, 1997 Released: June 17, 1997
By the Commission:
1. The Commission has before it a Petition for Reconsideration filed by Olmsted
County Broadcasting Co. and United Audio Corp. ("Petitioners") on August 19, 1996.
Petitioners challenge the Commission's Memorandum Opinion and Order in Radio Ingstad
Minnesota, Inc., 11 FCC Rcd 8961 (1996) ("Order"), which denied their Application for
Review of the grant of an application by Radio Ingstad Minnesota, Inc. ("Ingstad") for a
license to cover construction pennit and dismissal of their "Motion to Deny License"
("Motion"), For the reasons stated below, we deny the Petition.
2. Background. Ingstad was granted a construction permit for station KMFX on April
30, 1992. After completing construction of the authorized facilities, Ingstad filed the above 
referenced license application. Petitioners, who did not oppose Ingstad's construction pennit
request, fIled the Motion to deny the license application on the ground that, due to intervening
terrain conditions, KMFX allegedly failed to provide the 70 dBu coverage required by 47
C.F.R. § 73.315 to its community of license, Lake City, Minnesota. Petitioners relied on
terrain profile graphs and an independent engineering study based upon Technical Note 101
coverage prediction methods. See PL. Rice, A.G. Longley, K.A. Norton, and A.P. Barsis,
"Transmission Loss Predictions for Tropospheric Communication Circuits," NBS Technical
Note 101, fIrst published in 1965 by the National Bureau of Standards. In opposition, Ingstad
submitted a supplemental showing! that Petitioners' study was flawed and that, properly
applied, Technical Note 101 methods predicted satisfactory coverage. Thereafter, Petitioners
I In support of its permit request, Ingstad submitted undisputed evidence demonstrating that, based upon 47
C.F.R. § 73.313 standard prediction methodology, KMFX provided the requisite coverage.
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Federal Communications Commission FCC 97-199
submitted another study utilizing different calculations also based upon Technical Note 101.
2
3. The Mass Media Bureau ("Bureau") dismissed Petitioners' Motion as an untimely
objection to the grant of Ingstad's construction permit. Letter to Radio Ingstad Minnesota.
Inc. from the Chief. Audio Services Division. Mass Media Bureau, April 24, 1995 (reference
1800B3-DEBIDJF/JR). Even considered as an infonnaI objection to the license application,
the Bureau concluded, the Motion did not demonstrate that issuance of the license would be
contrary to the public interest. The Bureau noted·that" at this' latter'stage of the station
authorization process, Ingstad had a protected interest in grant of its application, "different
from and superior to that of a construction permit applicant." Id. It also reasoned that
Ingstad's showing that KMFX provided the requisite 70 dBu coverage to Lake City based
upon 47 C.F.R. § 73.313 standard prediction methodology was sufficient, in and of itself, to
comply with COnurllssion rules. Petitioners sought review of this action on May 24, 1995.
4. In denying Petitioners' Application for Review, we upheld the Bureau's dismissal of
the Motion, as well as its detennination that issuance of the license would not be contrary to
the public interest. We found that Petitioners' arguments were procedurally improper because
they could and should have been raised during the initial construction permit stage of the
authorization process, rather than the licensing stage. In addition, we held that Petitioners
failed to raise facts that "clearly point[ed] to an injury to the piIblic sufficient to outweigh
considerations of administrative orderliness." Order at 8963-64. In so holding, we relied
upon Ingstad's undisputed showing that K1'vIFX provided the requisite coverage based upon
standard prediction methodology. We also stated that, based upon our evaluation of
Petitioners' studies, as well as our independent terrain analysis, Petitioners failed to show
sufficient deviation from the 70 dEu coverage level to warrant overturning the previous grant
of Ingstad's permit. Specifically, we noted that our study indicated that, inter alia, KMFX's
median predicted signal strength to Lake City based upon alternative prediction methods
would be less than 1 dEu below the required 70 dEu.
5. Petitioners now challenge our reliance on our own "study" in the Order without
incorporating it into the record and allowing adversarial comment thereon.
3
This challenge is
founded on the contention that, absent disclosure of the study, our action is "arbitrary"
because the only evidence of record concerning coverage is Petitioners' second engineering
study, which allegedly contradicts our detennination that issuance of Ingstad's license would
2 Petitioners nOw appear to concede that their first study was flawed, for they contend in the Petition for
Reconsideration that "[tJhe only reliable evidence of record concerning KMFX coverage to Lake City is the
supplemental engineering exhibit submitted by Petitioners[.}"
3 Petitioners concede that "it was appropriate for the Commission to evaluate Petitioners' technical showing."
Reply to Ingstad's Opposition to Petition for Reconsideration, lJ 5. Thus. Petitioners object only to our reliance
on our independent terrain analysis, not our independent evaluation of Petitioners' studies.
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Federal Communications Commission
not be contrary to the public interest.
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FCC 97-199
6. Discussion. Initially, we stress the stringent standard of Section 319(c) of the
Communications Act of 1934, as amended, 47 U.S.C. § 319(c), by which Petitioners'
challenge to Ingstad's license application must be judged. Grant of the application was the
second in a two-stage authorization process governed by Sections 309 and 319(c) of the
Communications Act of 1934. See Focus Cable of Oakland. Inc., 65 FCC 2d 35,39-40
(1977). In the first stage, we granted Ingstad's permit request based' on'our finding under
Section 309 that the public interest would be served by operation of KMFX. This finding
was based on the evidence submitted by Ingstad in support of its request, and was
unchallenged. During the second, 319(c) stage of the process, Ingstad had a protected interest
in grant of its license application, and the earlier public interest finding could be overturned
only based upon "extraordinary circumstances." Whidbey Broadcasting Service. Inc., 4 FCC
Rcd 8726, 8727 (1989). Accordingly, objections that might have been valid if raised by
Petitioners at the first stage were no longer necessarily sufficient, particularly if, as we
concluded, they could have been raised earlier. See Focus Cable, 65 FCC 2d at 40; KACY,
Inc., 30 FCC 2d 648, 650 (1971). Under this standard, Petitioners' challenge fails.
7. The contention upon which Petitioners' challenge is premised-- that there is no
record evidence supporting our decision to grant Ingstad's license application-- is without
merit. First, our finding is supported by Ingstad's undisputed evidence that, based upon
standard prediction methodology, KMFX provides the required 70 dBu coverage to Lake City.
See 47 C.F.R. §§ 73.313; 73.315.
5
This evidence was sufficient, in and of itself, to
4 Petitioners cite three cases in support of this contention, each of which is inapposite to this case except to
the extent that it generally involves application of the "arbitrary or capricious" standard of review of agency
action. See Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1574-76 (10th Cir. 1994) (setting aside
standard that reduced deficiency payments for farmers' wheat crop due to excessively late planting, where
agency's administrative record was silent); Bechtel v. F.C.C., 10 F.3d 875 (D.C.Cir. 1993) (setting aside standard
that established "integration" preference for licensing applicants who intend to manage and operate proposed
station personally. where agency could not establish a sound, documented basis supporting its policy); Central
Alabama Broadcasters. Inc.. 73 FCC 2d 146 (1979) (setting aside denial of attomey-client privilege where
presiding officer did not articulate deficiencies in showing of justification for privilege). In contrast, here, the
Commission's decision was based upon the record evidence as furnished by Ingstad, and the Commission's study
corroborated that documentation.
5 Attempting to discount this evidence, Petitioners point out that 47 C.F.R. § 73.313 standard prediction
methodology normally measures only a three-to-sixteen kilometer area, whereas Lake City is over 16 kilometers
from KMFX's antenna site. Accordingly, Petitioners contend, the evidence is worthless and cannot support the
Commission's action. Section 73.313(d)(l) specifically provides, however, that "[a]t least one radial must include
the principal community to be served even though it may be more than 16 kilometers from the antenna site[,]"
and examination of Ingstad's construction permit request reveals its compliance with this requirement. Thus,
Ingstad's data based upon standard prediction methodology included the relevant terrain between KMFX's
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Federal Communications Commission FCC 97-199
demonstrate compliance with Commission rules, which do not require showings based on
alternative prediction methods in order to demonstrate satisfactory coverage; our decision to
perform an independent terrain analysis was entirely within our discretion. Id. Second, our
finding is supported by record evidence that alternative methods predict little or no deviation
from required coverage levels: Ingstad's supplemental showing that, properly applied,
Technical Note 101 methods predict satisfactory coverage; and Petitioners' supplemental
engineering study, which based on our indepedent evaluation showed a median signal strength
to Lake City less than 1 dBu below the"required'70'd:Bu;"Thus~'·'contrmyto'·Petitioners'
argument, our independent terrain analysis did not furnish the sole or central basis for our
action; rather, it merely corroborated existing record evidence regarding a single factor in our
decision. Finally, our finding is supported by the undisputed fact that Petitioners failed to
exercise ordinary diligence by coming forward with their objections in a timely manner. See
KACY. Inc., 30 FCC 2d at 650. This non-technical fact supports our finding because, as set
forth above, the finding was not a de novo public interest determination. Id.
8. Based on the foregoing, we reject Petitioners' challenge of our reliance on our
independent terrain analysis without incorporating it into the record and allowing adversarial
comment thereon. Petitioners cite no authority for the proposition that the Commission
cannot resort to its own expertise under the circumstances presented here without providing
for comment and Section 319(c) contains no provision for the adversarial process advocated
by Petitioners. See Manhattan Tankers. Inc. v. Dole, 787 F.2d 667, 670-71 (D.C.Cir. 1986)
(affected competitor's right to adversarial process in informal adjudicatory proceeding limited
by specific statutory and regulatory scheme at issue). In any case, we would reach the same
result even without relying on the Commission's study. Nevertheless, in the interest of full
disclosure, we hereby append to the instant decision the Commission's study.
9. ACCORDINGLY, IT IS ORDERED, That the Petition for Reconsideration filed by
Olmsted County Broadcasting Co. and United Audio Corp. on August 19, 1996 IS DENIED.
FEDERAL COMMUNICATIONS COM:MISSION
William F. Caton
Acting Secretary
transmitter site and Lake City.
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