Federal Communications Commission Before the Federal Cpmmunications Commission Washington, D.C. 20554 FCC 98-69 In the Matter of Implementation of the AM Expanded Band AllotIilent Plan ) ) ) ) ) MM Docket No. 87-267 Adopted: April 14, 1998 By the Conunission: MEMORANDUM OPINION AND ORDER Released: April 28, 1998 1. The Conunission has before it two petitions for reconsideration of Implementation ofthe AM Ex~andedBand Allotment Plan, 12 FCC Rcd 3361 (1997) ("Order IIf') filed by Press Broadcasting; Co" Inc., licensee of WBUD(AM) and WKXW(FM), Trenton, New Jersey and WBSS-FM, Millville, New Jersey ("Press")' and Kovi!S. Communications, Inc., licensee of WONX(AM), Evanston, illinois. Order III is the fourth reconsideration action in this proceeding toimpi:>:)ve and revitalize the AM broadcast band and to license stations in the frequencies between 1605 and 1705 kHz, the "Expanded Band." See Review of the Technical Assignment Criteria for the AMBro~dcastService, 6 FCC Red 6273 (1991)' ("AM Improvement Order"), recon. granted in' part and denied in part, 8 FCC Red 3250. (1993) ("Reconsideration Order"), recon. granted in part and denied ihpart, 10 FCC Red 12143 (1995) ("Order f'), reCon. denied, 11 FCC Red 12444 (1996) ("Order If'), recon. granted in part and denied in part, Order III, 12 FCC Red 3361 (1997):' For the reasons setforth below, we deny the Press and Kovas petitions. BACKGROUND 2. The Conunission has crafted a three-part process to identify the best station candida\es for potential migration to th,e Expanded Band and assign specific frequencies to these migrators. initially, the staff comparativei)i ranked the approximately 700 AM stations that expressed an interest in 1993 in migrating to the Expanded Band. Rankings were based on each station's "interrerence imprOvement factor," a measure of theextent to which a station's authorized facilities causes and receivesini~rfeience. SeCondly, afrequency preClusion progiam eliminated from consideration on a 'station-specific basis thoke allotments which could not be assigned in confoonance with technical and. international treaty requirements. Finally, the allotment program matched allotments to migrators, beginning with the stations with the highest interference improvementrankings. I On January 14, 1998 Presscompleted.~corporate reorganization and assigned these licenses to Press Communications, .LLC. File Nos. BAL-970603IB, BALH-970603IG and BALH-970603ID. "Press" is used herein to refer to both entities. , See Order III, 12 FCC Rcd at 3361, for a more detailed summary of prior actions taken in this proceeding. 21.872 Federal Communications Commission 3. Order III rescinded the second allotment plan, modified both the frequency preclusion and allotment programs, and clarified the second harmonic interference standard used in the frequency preclusion program .. The Mass Media Bureau concurrently issued the Third Allotment Plan. See Public Notice, Mass Media Bureau Announces Revised AM Expanded Band Allotment Plan andFilingWi~dow for Eligible Stations, 12 FCC Rcd 3185 (MM. Bur. 1997) ("Public Notice II!'). Public Notice II1listed specific allotments for the eighty-eight stations eligible to receive Expanded Band aSsignments and invited the filing of construction permit applications.' As a result of the computer program revisions adopted in Order III, nine stations listed in the second allotment plan lost allotments, ten new stations became eligible for migration and nineteen stations changed frequencies. The dual frequency authorizations which 'potential migrators obtain will expire in five years. At that time either the existing or'Expanded Band authorization must be submitted for cancellation. THE PETITIONS FOR RECONSIDERATION 4. The Press Petition. On May 16, 1996 Press filed a petition for reconsideration (the "1996 Petition") of Order II. It argued that technical and maIketplace developments since the 1991 Report and Order have made unnecessary a five-year transition period for dual frequency operations. In its place it recommended a six-month transition period. Press also questioned the Commission's int"erference improvement rankings of potential, migrators on the basis ofconstmction permits and, more generally, the Commission's reliance on a frozen 1993 database for generating the Expanded Band allotment plan. Finally, Press complained that this proceeding has been inattentive to the Section 307(b) mandate to provide a "fair, efficient, and equitable distribution" of radio services. 4 5. Order III dismissed the 1996 Petition as "untimely." Press now contends that the 1996 Petition was timely filed and therefore, that the Commissionmust reach the substantive issues raised therein. Press concedes that the 1996 Petition raises issues "not directly discussed" in Order II.H~wever,it argues that reconsideration of the five-year transition time frame is particularly appropriate in connection with an order directed to the implementation of the Expanded Band licensing plan. 6. Press fIled its original Petition on May 16, 1996, less than 30 days after Order II was published in the Federal Register. Therefore, the 1996 Petition was timely filed. However, the Commission previously considered and rejected every argument raised by Press in its 1996 Petition. Moreover, none ofthe policy determinations challenged by Press was modified in Order II. Accordingly, the petition is, in any event, subject to dismissal. See 47 C.P.R. § 1.429(i) (limiting subsequent reconsiderations to modifications made to original order on reconsideration). The five-year transition period was adopted in 1991 based on the technical and economic uncertainties of implementing new service in the AM Expanded Band. See Report and Order, 6 FCC Red at 6320. In respopse to several petitions, the Commission rejected on reconsideration both a shorter transition period and an allotment plan that would favor immediate migrators as a policy that would "tend to forego greater long term , Sixty-seven construction permit applications were filed by stations listed in Public Notice Ill. The staff has granted approximately fifty-five of these applications and will complete its processing ofthe remaining applications in the next several weeks. , 4 In June 1993, Press filed with the Commission an expression of interest on behalf of WBUD, Trenton, New Jersey for an AM Expanded Band allotment. None of the 'three allotment plans has included WBUD among the stations eligible to receive Expanded Band assignments. 21873 Federal Communications Commission FCC 98-69 benefits for lesser short term gains." 8 FCC Rcd at 3256. In a subsequent reconsideration action the Commission reaffirmed its decision to use a fixed database, reasoning that this approach would promote administrative finality and basic fairness, and that it would not be feasible to use a Changing database. Order I, 10 FCC Red at 12145. Finally, in Order I the Commission rejected as untimely reconsideration arguments directed to the alleged failure of the AM Expanded Band allocations process to take into account Section 307(b) requirements, concluding that the time to reconsider this issue has long since passed. 10 FCC Rcd at 12147. This same reasoning applies equally to Press's dilatory effort to seek further reconsideration of these same-issues at a latter stage of the same proceeding. See 47 C.P.R. § 1.429(i) (pelIUitting staff to dismiss as repetitious matters previously considered and rejected by the Commission). 7. The Commission has recognized that Section 1.429(i) is pelIUissive and that it may consider untimely or repetitious arguments where the public interest would be better served thereby. E.g, MTS and WATS Market Structure, 99 FCC 2d 708,712 (1984). However, .the justification proffered by Press is unpersuasive. Each of the orders in this proceeding has been "directed to the implementation of .the expanded band migration." The Communications Act, our roles and the need for administrative orderliness require petitioners to raise issues in a timely manner. We emphatically reject Press's apparent contention that itmay delay its participation in this rolemaking until actual licensing actions are imminent. 8. Nevertheless, we are cognizant o(our responsibility to reevaluate regulatory standards over time and to. modify policies in response to changes in the broadcast Industry. E.g., Office of Communication ofthe United Church of Christ v. FCC, 707 F.2d 1413, 1425 (1983). In this regard, it is clear that. full-band radio receivers have become broadly available since our 1991 decision to grant migrators a five-year transition period. In contrast, it remains difficult to forecast audience listening patterns and preferences, and potential advertising revenues, particularlY of stand-alone AM stations. We fmdunpersuasive the fact thatPress, in its 1996 Petition, has identified one station where one experienced -broadcaster believes that one stand-alone AM Expanded Band facility is economically viable in the niuion's largest media market. In contrast, one-fourth of the stations selected in the March 1997 allotment plan chose not to file constmction pelIUit applications, a fact which we believe is substantially more probative of the uncertainties that broadcasters continue to face and which substantially refutes Press's contention that the five-year transition period constitutes a "lucrative windfall" for migrators. We conclude that any modification of the five-year transition period is unwarranted and deny reconsideration for this reason. 9. The Kovas Petition. Kovas was listed as receiving an Evanston, Illinois 1700 kHz assignment in the second plan but did not appear on the third plan. It claims that the assignment of 1700 kHz to KKSO(AM), Des Moines "on its face precluded" the allotment· Of this channel to Kovas and seeks reconsideration of the Des Moines assigument on several grounds. It specifically challenges the second harmonic interference protection standard announced in Order III and the staffs apparent detelIUination that the proximity of WAIT(AM), Crystal Lake, llIinois, which operates on 850 kHz, precludes a 1700 kHz allotment to Kovas. - . . 10. Stations operating on 810, 820, 830, 840, and 850 kHz have the potential to cause interference to Expanded Band stations operating on 1620, 1640, 1660, 1680, and 1700 kHz. This so called second harmonic interference is caused by the generation of the (higher) second harmonic of the lower ftequency within a radio receiver. This interference can impede or make impossible reception of the higher frequency station, but has no impact on. the reception of the lower ftequency station. Second 21874 Federal Communications Commission FCC 98-69 harmonic interference occurs most <::ommonly in the immediate vidnity. of the lower frequency station where its signal strength ·is high. Section 73.182 restricts the location of existing band AM stations, prohibiting the l()cation of the transmission facilities of a lower frequency (54Q-800 kHz) station within the service area of the harmonically-related higher frequency station, In Order III we recognized tha,t the Commission's technical rules use a iwo-part standard for deteniliriing where second harm0I!ic interferenCie may occur, protecting the'higher frequen<::y AM station's primary service areaon the basis oOts 2,0 \UVim contour in communities of at least 2,500 and Its 05 mV/m contour elsewhere.' We concluded, however: that for pUlposes of compiling a nationai allotment plan for Expanded Bandsp~trumit i; more appropriate to detennine.hannonic pre<::lusions on the basis of a unifonn 0.5 mV/m standard "regardless of the population of the community in whiCh the transmission facilities of the lower frequency station is located." 12 FCC Rcd at 3363 - 64. We explained that this standard is consistent with our objective to authorize interference-free AM service in the Expanded Band and the interference. protection standards that we have applied generally in the AM servke. [d. 1.1. Kovas's analysis of the second hannonic standard is erroneous." KO:fas asserts that under the rules, WONX would only be protected to its 2.0 m V1m contourin the vicinity ofthe WAIT transmitter because Crystal Lake has a population of 10,000. This is incorrect. As noted in Order Ill, the routine processing ofAM facility applkatio)1s requires the staff to detennine whether the calcldated groundwave service contour of the SecQnd hannonic station would encompass the transmitter site ofthe lower freqllency station. The population count that iscritical)n detennining whether the 0.5 .or 2.0 mV/m rontour is used is that of the conununity where the lower frequen<::y station trarismitter is IOGated,not the dty to which the station is licensed. In fact, staff studies based. on Census Bureau data' have concluded that the WAIT transmitter is situated in ail uninroxporated area just outside theincoxporatedlimits of Crystal Lake. In,these drcumstances, the population of Crystal Lake is irrelevant and the 0.5· mV/m contour is the correct standard for detennining prohibited second hannoni<:: overlap between a 1700 kHz Evanston facility and WAIT.ld. Acrordingly;Kovas is ineligible to receive an Expanded Band allotment sinGe the WAIT transmitter siie would be located withip the 05 mVIm rontour of the proposed E"anston allotment. 12. We also. note that one of the reasons given in Order III for adopting the 0.5 my/m contour protection standard was to avoid detailed fllf'tual analyses of this kind. "Moreover, the use oftwo contour ., AM signal reception varies with the exlent ofelectromagnetic frequency "noise" in the AM band. Such noiSe can be generated by a number offactors, including commercial and industrial activity.Th~s,listenable signals may generally be obtained at lower signal strengths in rural are",s. As a result, Section 73.182 provides greateq,rotection (to the larger area encompassed by the second harmonic station's weaker 0.5 mV1m contour) in low population areas.. " Kovas~guesthat the second harmonic standard ·set forth in Order [ was designed to protect thep~otected service areas of existing stations. As a preliminarY matter, we previously acknowledged that Order I rilisstated .. Sections 73.182(d) and (s). Order III at 3362 - 63. Kovas's attempt to draw some inference from this error is clearly specious. More fundamentally, the application ofSection 73.182 is not -- and has neverbeen - designed to protect either lIexisting i' or "QCW" service. Rather, its purpose is always to protect a station operating on a second harmonic, i,e., higher, frequency. As a· practical matter, second harmonic concerns in this proceeding will always involve an existing band signal impeding signal receptiori of an Expanded Band station. . , The staff used the United States Bureau of the Census 'Tiger Map Service which can be accessed on the internet at http://www.census.gov/geo/wwwitiger. . 21875 Federal Communications Commission FCC 98-69 values, depending on the 10Cll/ion of the existing band station's transmission facilities, would likely engender disputes about the location and population of particular communities, boundaries of unincorporated areas and similar factually-intensive controversies that could consume limited staff resources without necessarily improving the overall allotment plan." 12 FCC Red at 3364 (emphasis added). Finally; Kovas's argument that~eshould take into account actual ground conductivity measurements to calculate a predicted 0.5 mV/m contour is untimely. This position has been previously' considered and rejected. See Order I, 10 FCC Red at 12148; Order ll, 11 FCC Rc:d at 12447-48. Reconsideration will not be granted to relitigate matters already resolved. See, e.g., WWIZ, Inc., 37 FCC 2d 685(1964), aff'd sub nom. Lorain Journal Co. v. FCC, 351 F.2d824 (D.C. Cir. 1965), cert. denied, 383 U.s. 967(1966). 13. Kovas also contends that the Commission failed to provide adequate notice of the second harmonic preclusion standard which was clarified in Order Ill. We disagree and conclude that this proceeding has satisfied the Administrative Procedure Act ("APA") requirement of adequate notice of "either the terms or substance of the. proposed rule or a description of the subjects and issues involved." 5 U.S.C. § 553(b)(3). Courts have 'repeatedly held that. this notice requirement is satisfied where thefmal rule is a "logical outgrowth" of itsrulemaking proposal. See, e,g., Aeronautical Radio, Inc. v. FCC, 928 F.2d 428, 445-46 (D.C. Cir. 1991); United Steelworkers of America v. Marshall, 647 F.2d 1189, 1221 (D.C. Cir: 1980), cert. denied, 453 U.S. 913(1981). The focus of this test is "whether ... [the party], ex ante, should have anticipated that such a requirement might be imposed." Small Refiner Lead Phase Down Task Force v. FCC, 705 F.2d 506, 549 (D.C. Cir: 1983). Moreover, notice is sufficient where the description of the "subjects .and issues involved" affords interested parties a reasonable opportunity to participate in therulemaking: Transpacific Freight Conference of Japan/Korea v. Federal Maritime Commission, 650 F.2d. 1235, 1248 (D.C. Cir. 1980) ("Transpacific"). 14. In Notice ofProposed Rulemaking, Review ofthe Technical Assignment Criteria for the AM Broadcast'Service; 5 FCC Red 4381 (1990) ("NPRM"), we proposed to apply existing AM band technical . standards "generally" to operations in the Expanded Band. !d. at 4386. Several parties responded to this proposal and the Commission subsequently adopted this approach. Report and Order, 6 FCC Red at 6321. In Order I, the Commission provided an additional thirty-day period for comments on the specific technical standards it proposed to use to generate. stations' interference improvement ran:kings and the allotment plan" Order I, 10 FCC Red. at 12147. This list included a second hannonic interference standard that would preclude potential Expanded Band allotments on 1620, 1640, 1660, 1680 and 1700 kHz where prohibited overlap between the two hannonically-related, e,g., 810 and 1620 kHz, stations would occur. Order 1,10 FCC Red. at 12147 - 49. As previously noted in Order Ill, the two relevant rules, Sections 73.182(d) and (s), were correctly cited but erroneously described as barring the overlap of the two stations' 05 mV/m contours. ..15. One potential.migrator, Suiuise Broadcasting of New York, Inc., permittee ofWGNY(AM), Newbwgh, Nevi' York ("WGNY:'), filed comments seeking reconsi,jeration, arguing.that the second hannonic standard, as described, was too preclusive. Order II denied reconsideration and the staff simultaneously released the second allotment plan. WGNY again challenged this standard, and requested that the CommissiOii'reconsider tlie Order I standard. Order III acknowledged the inconsistency between the rule'and its description as set forth in Order I; and annolinced a resol1!tion to this issue. In .these circumstances it is beyond dispute thver effects on other preclusion calculations including second hannonic preclusions, resulting in the erroneous identification of 1700 kHz as a technically viable Evanston allotment." Correcting this error, and not the Commission's decision to retain the second '\., " Specifically, the computer routine which detennined domestic allotment preclusions in the Mexican border area first identified all proposed Expanded Band stations in the border zone. The program provisionally declared all frequencies precluded for such border zone stations. However, it then made a series ofcalculations to detennine whether any of the frequency preclusions could be removed. This would be possible only where a proposed Expanded Band allotment was sufficiently close to a theoretical domesticb~rderzone allotmentprevl~uslyapproved in an agreement between the United States and Mexico. The first step in this calculation involved setting a "flag" which indicated the distance betweenthe Expal)ded Band station and any border zorie allotment: However, instead of correctly setting the flag (and corresponding computer memory location) to a proper initial value, the program erroneously set the flag by changing, i.e., overwriting, a previously calculated value at a certain memory location. In addition, the memory location waS situated outside the meaningful bounds, i.e., array size, of the flag. The specific location where overwritten data was placed could not be definitively established. Based on a comparison of the summary preclusion tables for each potential Expanded Band migrator made before and after this array initialization error was corrected, the staff determined that this Mexican preclusion subroutine error produced errors 21877 Federal Communications Commission FCC 98-69 harmonic standard used in the second allotment plan, resulted in Kovas being dropped from the Thini Allotment Plan. 18. Kovas's attack on the Des Moines 1700 kHi assignment is in error. The computer program which makes the actual allotments is designed so thata lower ranked station, such as KKSO, could never prevent a higher ranked station, such as WONX, from receiving an allotment. As explained above, the location of the WAIT transmission facilities precluded an Evanston 1700 kHz assignment. Correction of a programming error prior to the Thini Allotment Plan computer run removed WONX from consicleration for this frequency and created the opportunity to assign 1700 kHz to KKSO. Nonetheless, vie note that Kovas's argument against the 1700 kHz allotment to Des Moines is without merit. It claims that the allocation of 1700 kHz to KKSO would result in "substantial" prohibited daytime overlap with first adjacent channel (1690 kHz) station KILR(AM), Estherville, Iowa, and therefore, that the Des Moines allotment must be rescinded. This analysis is incorrect. Co- and adjacent channel interference protection in the Expanded Band is based on distance separations, note signal strength contours. See 47 CFR. § 73.37(e) (explicitly exempting Expanded Band facilities from general contour protection requirements); Report and Order,· 6 FCC Red at 6314 (specifying, inter alia, a 200 kilometer separation requirement for first adjacent channel Expanded Baild stations). The distance between KILR and KKSO is 230.7 kilometers and therefore the two allotments meet the relevant channel separation requirement. ORDERING CLAUSE 19. ACCORDINGLY, IT IS ORDERED, That the petitions for reconsideration filed by Press Broadcasting Company, Inc. and Kovas Communications, Inc. ARE DENIED. v.....EERAL COMMUNICATIONS COMMISSION ~~12~/~. Maglilie Roman Salas . Secretary in the,.calculati~nof harmonic preclusions for·-a number of stations, including WONX. 21878