Appendix — City of New York Municipal Broadcasting System (WNYC) v. Federal Communications Commission

Supreme Court brief1985

Ask Donna

What actually matters in this document.

Text

ie A

FILED

DEC 19 1984

—

g4- 988~—

ALEXANDER L. STEV

IN THE CLERK

SUPREME COURT OF THE UNITED vl

October Term, 1984

No,

CITY OF NEW YORK MUNICIPAL BROAD-

CASTING SYSTEM (WNYC),

Petitioner,

FEDERAL COMMUNICATIONS COMMISSION and

WCCO RADIO, INC.,

Respondents,

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

APPENDIX

FREDERICK A, 0, SCHWARZ, JR.,

tion Counsel of the

City of New York,

Attorney for Respondent,

100 Church Street,

New York, New York !0007.

(212) 566-2192

LEONARD KOERNER,

STEPHEN P, KRAMER,

of Counsel,

December 19, 1984

TABLE OF CONTENTS

OPINION OF THE UNITED

COURT OF APPEALS FOR DISTRICT

OF COLUMBIA cece cccccccceccccccccscccccssecccoscssosess l

ORDER OF THE CIRCUIT COURT FILED

SEPTEMBER 21, 1984.....ccccccscccscscescssesccccseees 35

ORDER OF THE CIRCUIT COURT FILED

SEPTEMBER 25, 1964.cccoccocccccsccccosccccccccseccs 37

DECISION OF THE FEDERAL COMMUNI-

CATIONS COMMISSION, FCC 82-428

(SEPT. 23, 1982),

91 FCC 20 635. .cccccceesees cv cccccccccccces covccecces cee 39

MEMORANDUM OPINION AND ORDER

DENYING RECONSIDERATION,

FCC 83-232

(MAY 18, 1963) cocccccccccccscvevsccecccscscscoscsccscooecs 64

INITIAL DECISION OF ADMINISTRATIVE

LAW JUDGE, FCC 78D-36

G1 FCC 659 (1978) .cccccccccccccccccccccccccvoccccsccooces 74

ee een ee ae

Be ae Bre cas 4. tll

Notice: This opinion is subject to formal revision before publication

in the Federal Reporter or U.S.App.D.C. Reports. Users are requested

to notify the Clerk of any formal errors in order that corrections may be

made before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 83-1663

CITY OF NEW YORK MUNICIPAL BROADCASTING

SYSTEM (WNYC), APPELLANT

Vv.

FEDERAL COMMUNICATIONS COMMISSION, APPELLEE

WCCO Rapi0, INC., INTERVENOR

Appeal from an Order of the

Federal Communications Commission

Argued: March 9, 1983

Decided: September 21, 1984

Stephen P. Kramer, of the Bar of the Appellate Di-

vision of the Supreme Court of the State of New York,

pro hac vice, by special leave of the Court, with whom

Alfred J. Tighe, Jr. was on the brief for appellant.

David Silberman, TCounsel, Federal Communications

Commission, with whom Bruce E. Fein, General Counsel,

Bills of costs must be filed within 14 days after entry of judgment. The

court looks with disfavor upon motions to file bills cf costs out of time.

and Daniel M. Armstrong, Associate General Counsel,

were on the brief for appellee.

Jerome S. Boros with whom Peter Shuebruk was on

the brief for intervenor. Zane M. Unger also entered

an appearance for WCCO.

Before: WRIGHT, BorK and STARR, Circuit Judges.

Opinion for the Court filed by Circuit Judge Bork.

Bork, Circuit Judge: This is an appeal from the Fed-

eral Communications Commission’s decision to terminate

a special exemption given to WNYC, a New York City-

owned radio station since 1943. The termination re-

stricts WNYC’s broadcast hours and so ends its night-

time co-channel interference with WCCO, Minneapolis.

This case has been before the Commission since 1954.

We have jurisdiction under 47 U.S.C. § 402(b) (1982).

The case is important both to WNYC’s current night-

time listeners and to the future of the FCC’s funda-

mental allocation rules for the AM band. Though we

recognize the unique and valuable nature of much of

WNYC’s programming, and the “significant loss to New

York City” that is the inevitable consequence of the Com-

mission’s decision, we cannot overturn the agency’s rea-

soned decision. We hold that the Commission rationally

weighed the competing policies in determining that the

public interest is best served by halting WNYC’s long-

time interference with WCCO’s nighttime operations.

The procedural history of this case is intimately linked

to the issues before us and to the Commission’s long

and arduous efforts to achieve the best allocation of the

broadcast spectrum. Before detailing the protracted pro-

cedural history of this case, we will briefly describe the

two basic kinds of radio signals, their different propaga-

tion characteristics, and the implications for the alloca-

tion of AM frequencies of these physical facts.

Stations operating on standard broadcast (AM) fre-

quencies are assigned to 107 channels in the frequency

range of 540-1600 kilohertz (kHz). Stations operating

on these frequencies simultaneously transmit a ground-

wave and a skywave signal. Groundwave signals move

horizontally across the earth’s surface. The intensity of

these signals diminish rapidly with distance and typi-

cally radiate between 100 and 150 miles from the trans-

mitter. They are highly dependable and remain rela-

tively constant at any location, day and night, season

to season. This is not at all true with skywave signals,

that portion of energy travelling from the transmitter

upward and outward into the ionosphere. During the

day, these signals are absorbed into the atmosphere. At

night, however, these signals “bounce” off the atmosphere

and are reflected back to earth, often to places far re-

moved from the transmitter. As a result, at night, sky-

wave signals cover areas not covered by the groundwave

signals of a particular station. Skywave service is less

reliable than groundwave service because the intensity of

the signal is affected by a number of factors including

time of year, sunspot activity, and atmospheric noise.

The Commission rules consider the service provided by!

these skywaves as “secondary service” and the constant’

groundwave service is classified as “primary service.” See

generally Clear Channel AM Broadcasting, 78 F.C.C.2d

1345, 1349-50, reconsideration denied, 83 F.C.C.2d 216

(1980), aff'd sub nom. Loyola University v. FCC, 670

F.2d 1222, 1223-24 & n.3 (D.C. Cir. 1982).

Despite its drawbacks when compared with ground-

wave service, skywave service can render useful night-

time service over wide areas. But to provide effective

service, skywave signals must be protected from other

stations on the same frequency, because if a skywave

lands in an area already receiving service from another

station on the same frequency the two signals may cancel

one another out. Loyola University, 670 F.2d at 1224

n.4,

Since 1927, the Commission and its predecessor agency,

the Federal Radio Commission, have pursued three basic

goals in allocating radio frequencies and in setting con-

ditions on the use of those frequencies:

(1) provision of at least one service to all persons;

(2) provision of service to as many persons from

as many diversified sources as possible; and (3) pro-

vision of outlets for local self-expression addressed

to each community’s needs and interests.

Loyola University, 670 F.2d at 1223-24, citing In re

Clear Channel AM Broadcasting, 78 F.C.C.2d 1345, 1349

(1980). To accomplish these goals, the Commission has

divided the AM frequency into three groups: local, re-

gional, and clear channel. Stations using the local and

regional channels operate at relatively low power and are

often authorized to operate during the day only. By con-

trast, clear channels are occupied by Class I-A stations.

These stations were created as one way of achieving the

goal of providing all persons with at least one service.

They are high-power stations whose skywave signal is

given maximum protection in order to provide secondary

service at night to areas of the country—so-called “white

areas”—not receiving primary nighttime service from

any other station. Clear-channel stations operate day

and night with the maximum permissible power of 50

kilowatts (kW) and their signals radiate in all direc-

tions.: The frequency being fought over here, 830 kHz, is

a clear channel frequency, and WCCO Radio, Inc. Minne-

apolis, Minnesota, WNYC’s competitor in this proceed-

ing, is a clear-channel station assigned that frequency.

The allocation policy described above is the result of

many rulemaking proceedings, conducted for close to half

ee Oe ee

;

a century. Originally, the Commission’s rules granted to

all Class I-A clear channel stations exclusive use of their

frequencies at night. Exclusivity was necessary to bring

the twenty-five million people without primary night-

time service some service, even if it was the less desir-

able secondary service. By 1945, however, the growing

demand for more stations made exclusivity increasingly

impractical, and the Commission was strongly urged to

make the clear channels available to stations other than

Class I-A stations. As a result, in that year the Com-

mission instituted a rulemaking proceeding to consider

the most efficient way to use the clear channel frequen-

cies. For fifteen years the Commission struggled with

the question, and in 1961, the Commission issued a re-

port and order amending its rules. The 1961 amend-

ments authorized full time stations on thirteen of the

twenty-five Class I-A clear channels. Loyola University,

670 F.2d at 1224, citing In re Clear Channel Broadcast-

ing in the Standard Broadcast Band, 31 F.C.C. 565

(1961) (“Clear Channel Broadcasting’). The Commis-

sion also announced that it would not approve a night-

time assignment on one of the newly opened clear chan-

nels unless the subordinate station protected the domi-

nant station’s 0.5 mV/m 50% skywave contour.? An ad-

1 This court affirmed the Commission’s decision in the Clear

Channel Broadcasting proceeding in Goodwill Stations, Inc. v.

FCC, 325 F.2d 687 (D.C. Cir. 1963).

2 To be considered usable, a signal must be at least .5 mV/m

field strength. This is the minimum required to overcome

natural and man-made noise. The reference to 50% means

that a usable signal must be received half the time at a par-

ticular location for that location to fall within the dominant

station’s protected skywave contour. See 47 C.F.R. § 73.182(i)

(1983). Once a protected skywave contour is set, a sub-

ordinate co-channel station may not place a signal stronger

than .25 uV/m inside the protected contour. Generally, this

contour is located 700-750 miles from the dominant station’s

transmitter. See Clear Channel Broadcasting, 31 F.C.C. at

573. Although the Commission in 1980 authorized some addi-

ditional rulemaking, begun in 1975 and concluded in

1980, allowed the existing dominant Class I-A stations,

one of which is WCCO, to operate omnidirectionally at

50 kW of power. Loyola University, 670 F.2d at 1225.

WNYC-AM is a municipally owned and operated Class

II* 1 kW radio station licensed to serve New York City

on 830 kHz. It has been operated on a non-commercial

basis since 1924 and is devoted completely to public serv-

ice. WNYC’s regularly licensed broadcast day is limited

to the time between sunrise in New York City and sun-

set in Minneapolis because of the interference it causes

within WCCO’s area of nighttime secondary service,

WCCO being the dominant station on the frequency.

Since 1943, however, pursuant to a series of year-to-year

Special Service Authorizations (“SSA”), WNYC has

been permitted to operate from 6:00 a.m. to 10:00 p.m.

(EST).* The FCC originally gave WNYC permission to

tional assignments on clear channels, it preserved the rules

protecting the dominent stations from interference within

their 0.6 mV/m 50% skywave contour. Loyola University,

670 F.2d at 1225 n.6.

3 FCC rules define a Class II station as “a secondary station

which operates on a clear channel... and is designed to render

service over a primary service area which is limited by and

subject to” interference from Class I stations. 47 C.F.R.

§ 73.21(a) (2) (1983). There are three different types of

Class II stations: Classes II-A and II-B stations, which are

unlimited time stations broadcasting 24 hours per day, and

Class IJ-D stations, which may broadcast only from sunrise

to sunset.

* Early in October, 1942, WNYC applied for modification of

its license to permit operation from 6:00 a.m. until 11:00 p.m.

(EST) daily. The Commission denied this request. In re

City of New York Municipal Broadcasting System, 9 F.C.C.

169 (1942). Later that same month, WNYC filed for and was

granted its first SSA in December, 1942. WCCO immediately

petitioned for reconsideration, asking that the grant be set

operate at night in spite of the co-channel interference to

WCCO because WNYC was thought to provide “ ‘needed

wartime services.’” In re City of New York Municipal

Broadcasting System (WNYC), 15 Rad. Reg. (P & F)

565, 572 (1957) (Initial Decision of Hearing Exam-

iner).© This SSA was repeatedly renewed, generally for

six months at a time.

aside and the application be set for a hearing. The Commis-

sion granted this petition in June, 1943, cancelling the grant

and designating the application for hearing. In August of that

year WNYC sought to amend its application to add the ex-

press condition that the requested authorization could be

terminated without an advance notice of hearing. That condi-

tion also stated that nothing in the application would be

“ ‘construed as a finding by the Commission that the authority

herein granted is or will be in. the public interest beyond the

express terms thereof.’” In re City of New York Municipal

Broadcasting System (WNYC), 15 Rad. Reg. (P & F) 565,

570 (1957) (Initial Decision of Hearing Examiner). WCCO

then withdrew its oposition to the grant of application and in

September, 1943 the Commission cancelled the scheduled hear-

ing and granted WNYC’s application.

The Special Service Authorization specified operation with

a directional antenna from 6:00 a.m. to sunrise New York and

sunset Minneapolis to 10:00 p.m. (EST) for a period “ ‘ending

in no event later than 3 a.m. Eastern Standard Time, Febru-

ary 1, 1955.’” 15 Rad. Reg. (P & F) at 570. The SSA also

contained the following condition:

“This special temporary authorization is granted upon

the express condition that it may be terminated by the

Commission at any time without advance notice or hear-

ing if in its discretion the need for such action arises.

Nothing contained herein shal] be construed as a finding

by the Commission that the authority herein granted is or

will be in the public interest beyond the express terms

hereof.”

Id. at 570 n.5.

5’ The October, 1942 application was granted because, in

addition to the war effort programs and services, WNYC’s

audience would be “ ‘sustained by program service of high

entertainment value, including dramatic programs, good music

a a

In 1951, the owner of WNYC, the City of New York

Municipal Broadcasting System, requested authority to

renew WNYC’s SSA for an additional six months. This

application was amended in 1954* “to request authoriza-

and various general entertainment.’” 15 Rad. Reg. (P & F)

at 572. Generally, the purpose of the proposed service during

the wartime years was “to instill an appreciation of the signifi-

cance of the war effort and the responsibilities of each citizen”

and “to prepare the community of 7,500,000 people for any

military or civil emergency that may arise in war time.” /d.

The applications after the end of World War II “stated a

threefold purpose” :

(1) to instill an appreciation of the significance of Gov-

industry

each citizen in that program; (2) to prepare the com-

munity of over 7-1. million people for any exigency that

may arise during the continuation of the national emer-

gency; and (3) to educate and inform the inhabitants of

the city concerning the United Nations Organization,

and to highlight facts looking to a better understanding

;

15 Rad. (P & F) at 572. The justifications WNYC

offered for its August, 1947 application as well as for its sub-

sequent applications were substantially similar. /d.

*In her 1957 opinion, the Hearing Examiner explained the

cause of this three-year gap as follows:

On August 29, 1951, the Commission advised WNYC that

cause the circumstances which led to the delay in acting

24, 1955, extended the SSA pending a final decision in

this proceeding.

In re City of Municipal Broadcasting System (WNYC), 15

Rad. Reg. (P & F) at 571.

tion for the period ee ee

Oe eae ee eS oe

(P & F) at 574, © end dutotoied tor or hearing. The Hear-

Mell Ah Bitte Sree: gpm t the Commission’s rules

make clear that “no duplicate nighttime service is per-

mitted on a Class I-A on a regular basis,”

id. at 631, but held that ng oy Bot pe pe

ib a eee ee WNYC serves “do not

Oe ts Oe sun in Minneapolis.” Id.

t 639. She recommended that WNYC’s application for

an SSA to operate at night be granted. Her decision

tke woes 1 note that the “Commission has held that it

will not consider an application for regularly licensed

pre-sunrise and post-sunset operation during the pending

of the Clear Channel Case.”

That the problem here involved has a relationship

}

Biss

She

=a]

;

Id, at 639-40. Following this reasoning, the Commission

took no action on WNYC-AM’s application “because of

its relationship to the clear channel proceeding.” In re

City of New York Municipal Broadcasting System

(WNYC), 1 Rad. Reg. 2d (P & F) 463, 464 (1963)

(Memorandum Opinion and Order).

In the Commission’s 1961 Clear Channel decision es-

tablishing the scheme described above, see supra pp. 5-9,

the Commission included a section entitled “Some Specific

Problems.” Clear Channel Broadcasting, 31 F.C.C. at

590. There the Commission noted that “(wJhile neither

640 ke... nor 830 ke . . . is authorized for use by a

class II-A station, both of these frequencies should be

given special attention here because of pending hearings

which involve the question of additional use of those

frequencies.” Id. at 591. The Commission then described

the situation of WOI, Ames, Iowa arid WNYC. WOI had,

since 1944, been permitted to broadeast during nighttime

hours “(nJotwithstanding the fact that this operation

does not meet the conditions of . . . the rules concerning

presunrise operation of daytime stations on clear chan-

nels.” Id. Like WNYC, WOI’s authorization to operate

at night was based on a series of SSA’s and temporary

authority. The Commission defined these temporary au-

thorizations as “a type . . . employed in exceptional cir-

cumstances to permit uses of AM frequencies for which

provision is not made in the general rules.” Jd. The

issue in the pending proceeding was “whether the public

interest would be served by continuing to authorize WOI’s

presunrise operation.” Id.

In the next paragraph the Commission described the

similar situation of WNYC and stated the issue as

“whether, balancing the interference caused to WCCO

against the service WNYC renders during nighttime

hours, the public interest would be served by continuing

to permit WNYC’s nighttime operation, for which no

provision is made in the AM rules governing the use of

class I-A frequencies.” 31 F.C.C. at 591. As to both the

WOI and WNYC proceedings, the Commission said:

We do not here decide upon or prejudice the deci-

sion in those adjudicatory proceedings. In one per-

tinent respect, however, it is appropriate to take

action in this proceeding by way of amending the

clear-channel rules to establish the basis for the reg-

ular licensing of WOI’s presunrise operations and

and WNYC’s nighttime operations so that in the

event it is decided in the adjudicatory proceedings

that such operations are in the public interest the

way will be clear procedurally for applications to

be filed for such operations on a regular basis.

Id. at 591-92. In Notes 1 and 2 to its amendment of rule

§ 3.25, entitled “Clear channels; classes I and II sta-

tions,” the Commission declared that it would accept

applications for “broadcast operations on 640 ke [pre-

sunrise] ... at Ames, Iowa” and “provision of a service

during some nighttime hours by a class II station operat-

ing on 830 ke at New York, N.Y.” Id. at 605. The

proviso to each note stated that the applications “will be

acted upon only after and in light of the decision

reached” in the pending proceeding. Id. at 605-06.

In disposing of petitions for rehearing, reconsidera-

tion, and stays of the Clear Channel proceeding, the

Commission rejected as premature WCCO’s argument

that the Commission had, in its 1961 decision, “pav[ed]

the way for regular operation and that Docket No. 11227

{the WNYC case] contemplates temporary authoriza-

tion.” In re Clear Channel Broadcasting in the Stand-

ard Broadcast Band, 45 F.C.C. 400, 410 (1962). The

argument was premature, the Commission said, “in the

light of the procedural nature of our action [as to

WNYC in the 1961 Report and Order] and our dis-

avowal of entering into the hearing issues in this pro-

ceeding.” Id.’ The Commission also recognized and re-

fused to foreclose the possibility that,

* The licensee of KFI, Los Angeles also argued that the

note to the amended clear channel rules “pav[ing] the way

if WNYC should operate nighttime in a manner

somewhat different than at present—eg., with a

different directional pattern and possibly a different

transmitter site—it might be possible to operate with

power greater than 1 kilowatt and still afford WCCO

as much or even greater protection than at present.

Id. at 411. The merits of the question whether WNYC-

AM was to be permitted to operate at night, however,

was still to be decided in Docket 11227. In 1963, the

FCC remanded Docket 11227 to the Hearing Examiner

“to the end that the record reflect current information

under the issues specified,” and consolidated the hearing

of WNYC’s SSA and regular application for nighttime

operation. 1 Rad. Reg. 2d (P & F) at 464-65.

WNYC quickly responded to the FCC’s suggestion.

In 1964 WNYC applied for a construction permit and

asked permission to broadcast at 50 kw on 830 kHz from

6:00 a.m. (EST) to 10:00 p.m. (EST) from a new site

on Staten Island. Although that filing was not originally

accompanied by a request for waiver of the Commission’s

rules, “[o]Jn July 7, 1964, WNYC filed a petition for

procedurally for the acceptance of applications for a pre-

sunrise operation on 640 kc at Ames, Iowa” was “outside the

record” and “constitute[d] a pre-judgment of the adjudica-

tory issues.” In re Clear Channel Broadcasting in the Stand-

ard Broadcast Band, 45 F.C.C. at 405. The Commission re-

jected these contentions, saying :

The rules expressly provide that such application will be

acted upon only after and in light of the decisions reached

in that docket. We fail to see how it can seriously be

contended that merely permitting such application sug-

gests pre-judgment. By our procedural action we have

not modified KFI’s license, nor have we made any -stub-

stantive findings as to the adjudicatory matters.

Id.

WCCO raised the same objections with respect to the oper-

ation of WNYC. The Commission rejected these contentions

as well, noting that “[t]he discussion [wita respect to WOT]

is equally applicable to WCCO’s contentions.” 45 F.C.C. at 410.

waiver of the Commission’s rules to permit acceptance

of and consideration of the application on its merits.”

In re City of New York Municipal Broadcasting System

(WNYC), 1 F.C.C.2d 1870, 1871 (1965). The Commis-

sion found that “the 50-kw directional proposed opera-

tion of WNYC during presunrise and postsunset hours

will not increase radiation (above present SSA values)

during nighttime hours toward the 0.5mv/m-50 percent

secondary service area of WCCO” and agreed to consider

the proposal on its merits. Jd. at 1373.

In 1967 the Commission reaffirmed its acceptance of

the construction permit application and the accompany-

ing request for waiver of the Commission’s rules. Jn re

City of New York Municipal Broadcasting System

(WNYC), 8 F.C.C.2d 1047 (1967). WNYC-AM’s pro-

posal, the Commission declared, was “clearly within the

scope of the .. . invitation.” Id. at 1049. The Commis-

sion also specified eleven issues to be tried in the con-

solidated dockets, id. at 1053-54, one of which was

framed as follows:

3. To determine whether, in light of the inter-

ference that it would receive, the proposed 50-kw

nighttime operation’ of station WNYC would be con-

sistent with the requirements of the note to sec-

tion 73.24(b) of the Commission’s rules and, if not,

whether circumstances exist which would warrant

a waiver of that section.

Id. at 1053.*

® Although oddly worded, this issue was clearly aimed at a

determination whether WNYC’s interference with WCCO’s

area of secondary service was justified. The concern has never

been the interference WCCO would cause to WNYC’s area of

proposed service. That the issue is stated that way is irrele-

vant, for if radio station A’s signal interferes with radio sta-

tion B’s signal, obviously radio station B’s signal interferes

with that of A.

In 1968, acting on a request by WCCO to add, modify,

and delete a number of issues, the Commission’s Review

Board rejected WCCO’s argument that issue number 3,

quoted above, was not properly framed. In re City of

New York Municipal Broadcasting System (WNYC),

11 F.C.C.2d 287, 293-94 (1968). The Board acknowl-

edged that if the text of the Commission’s rule as to

clear channel were to be applied literally, WNYC’s appli-

cation would have been precluded in the first instance.

In the Board’s view the note to the rule clearly contem-

plated, and in fact invited, WNYC’s application. The

Board also added the following issue:

To determine whether and to what extent WNYC-

FM can be utilized to meet presunrise and postsunset

needs and requirements of the areas proposed to be

served by WNYC’s 50-kW proposal.

Id. at 303. In adding this issue, the Board relied on the

Commission’s policy of “regard{ing] FM radio [as] a

component part of total aural service.” Id. at 292, citing

in re AM Station Assignment Standards, 25 Rad. Reg.

(P & F) 1615 (1963), and In re Pre-Sunrise Broadcast

Rules (Docket 14419), 11 Rad. Reg. 2d (P & F) 1571

(1967). The Board noted that the Commission had

taken FM service into account in resolving a variety of

different types of cases. 11 F.C.C.2d at 292, citing

Easton Publishing Co. v. FCC, 175 F.2d 344 (D.C. Cir.

1949) (section 307(b) case) ; In re Richmond Broadcast-

ing Co., 25 Rad. Reg. (P & F) i81 (1963) (same);

In re Radio Rockford, Inc., 6 Rad. Reg. 2d (P & F) 907

(1966) (waiver of allocation standards).

Finally, in refusing to delete an issue considering the

comparative merits of WCCO’s and WNYC’s program-

ming in relation to their respective areas, the Board

recognized the uniqueness of this case.

([T]his is not the prototype 307(b) or interference

case; it contains elements of both. The unusual na-

ture of this case, making the submission of program-

—

ing evidence particularly important, is demonstrated

by the allegations relating to the following: The

great distance separating the two stations; the na-

ture of the municipal licensee in New York; the non-

commercial and sustaining character of its program-

ing proposal; the “multiservice” type of programing

presented on the Minneapolis station; the peculiar

and large area in which the two signals interfere;

and, finally, the very nature of this proceeding

whereby an existing service (WNYC) is operating

on a clear-channel frequency under temporary

authorization.

11 F.C.C.2d at 299.

The Commission affirmed the Review Board’s decision

that the Hearing Examiner consider the “availability of

WNYC-FM as a possible alternative means of meeting

whatever needs may exist for additional [nighttime]

hours of operation for WNYC.” In re City of New York

Municipal Broadcasting System, 29 F.C.C.2d 244, 246

(1971).° The Commission agreed with the Review Board

that programming was germane to the proceeding and

modified the programming issue to make it consistent

with the programming issue specified in In re Iowa

State University of Science & Technology, 19 F.C.C.2d

36 (1969) (“WOI’). 29 F.C.C.2d at 248-49. Most im-

%In rejecting WNYC’s argument that “FM service is not

an adequate substitute for AM service,” the Commission stated

its belief that

the availability of WNYC-FM as a possible alternative

means of meeting whatever needs may exist for additional

presunrise and postsunset hours of operation for WNYC

is a proper matter for consideration in this proceeding. ...

29 F.C.C.2d at 246. The Commission found support for its

position in the WOI case, In re Iowa State University of

Science & Technology, 19 F.C.C.2d 36, 48, 49 (1969), where

the Commission expressly considered the availability of WOI-

FM as an alternative means of presenting presunrise pro-

gramming. Id.

portant, however, was the Commission’s statement of the

“ultimate issue” in this case:

The ultimate issue in' this proceeding . . . is to

determine, in the lignt of the evidence adduced with

respect to the other issues, which, if either, of the

WNYC applications should be granted. This is not

comparative hearing between WNYC and WCCO.

WCCO is not an applicant. WNYC is the applicant,

and as such, properly has the burden of establishing

that its proposed presunrise and postsunset program

service would serve special needs and requirements

of the populations and areas proposed to be served

by it and, further that the public interest would be

served by such proposed program service, in the light

of the nature and character of WCCO’s program

service to the areas and populations affected by in-

terference from WNYC.

Id. at 249, citing WOT, 19 F.C.C.2d at 45-50.

The twenty-one issues and one condition involved in

the consolidated dockets were tried at twenty prehearing

and sixty-nine hearing sessions over a period of fourteen

years.” The record was finally closed on August 24,

1977. In 1979, the Administrative Law Judge issued

his decision of 189 pages together with myriad findings

of fact, in which he concluded that although “WNYC has

made its own case difficult by failing to follow Commis-

sion guidelines and requirements as to ascertaining the

community needs and programming .. . the public in-

terest requires the granting of the 50 kW proposal

which subsumes the request for permanent authority for

the SSA hours for the present 1 kW operation.” In re

City of New York Municipal Broadcasting System

10 This proceeding was consolidated with WCCO’s applica-

tion for a “Franklin” antenna. The Commission eventually

denied WCCO’s request on the grounds that the antenna con-

stituted a hazard to air navigation. In re City of New York

Broadcasting System (WNYC), 91 F.C.C.2d 635, 649-55

(1982).

(WNYC), 91 F.C.C.2d 659, 663 (1978) (Supplemental

Initial Decision).

On review, the Commission reversed, concluding that

“WNYC has not established that its programming is re-

quired to satisfy the special needs and requirements of its

service area which would justify its interference to clear

channel station WCCO, Minneapolis, Minnesota.” In re

City of New York Municipal Broadcasting System

(WNYC), 91 F.C.C.2d 6385, 639 (1982). After the Com-

mission denied WNYC’s petition for reconsideration,

WNYC filed this appeal.

II.

WNYC’s basic argument on appeal is that the Com-

mission erred in deciding that the public interest would

best be served by denying WNYC its 50 kW proposal.

WNYC advances this argument not only by challenging

the Commission’s overall decision, but also by attacking

the components of that decision. For example, WNYC

asserts that it was wrong for the FCC to rely on the

WOI case in deciding whether WNYC met the “gpecial

needs and requirements of its service area,” In re City of

New York Municipal Broadcasting System (WNYC),

91 F.C.C.2d 635, 6438-44 (1982), citing WOI, because the

issues in that case were “decidedly different” than the

issues in this case. Reply Brief of Appellant WNYC at

5. WNYC further asserts that this is not a waiver case

at all, and that the deference generally due to the agency

in those types of cases is inappropriate here. We first

address the latter contention, because it is said to affect

the standard which we must use in reviewing the agen-

cy’s action. Next we examine WNYC’s challenge to the

components of the Commission’s decision, especially the

use of the WOI test and the consideration of WNYC-F'M

as an alternative to WNYC-AM. Finally, we consider

the overall public interest determination.

WNYC vigorously contends that this is not a waiver

case, for the amended clear channel rules expressly pro-

vide for the acceptance of WNYC’s application. There-

fore, argues WNYC, the waiver cases are inapposite, as

are those cases involving violations of Commission rules.

At oral argument, counsel for WNYC conceded that if

the waiver standard is applied, it would be “virtually im-

possible” for this court to reverse the Commission. But,

contends WNYC, they did not litigate a waiver case;

waiver was never the issue, the public interest was.

While we believe this was, in essence, a waiver case,

we do not think a contrary conclusion would affect our

standard of review sufficiently to affect the outcome of

the case.

WNYC is right in stating that this is not a typical

waiver case: it is not the type of waiver case where the

FCC refused to accept for filing an application that

would violate one of its established rules. See, e.g., ICBC

Corp. v. FCC, 716 F.2d 926 (D.C. Cir. 1988); WAIT

Radio v. FCC, 459 F.2d 1203 (D.C. Cir.), cert denied,

409 U.S. 1027 (1972). The 1961 amendment to the clear

channel rules did provide for acceptance of WNYC’s ap-

plication. WNYC, however, places more weight on that

amendment than it will bear. The Commission made

clear long ago that the note to the amendment of the

clear channel rules merely “pave[d] the way procedurally

for the acceptance of’ WNYC’s application if determined

by the Commission to be in the public interest. In re

Clear Channel Broadcasting in the Standard Broadcast

Band, 45 F.C.C. at 405 (emphasis added). See supra

note 4. In no way did the amendment “constitute[] a

pre-judgment of the adjudicatory issues.” 45 F.C.C. at

405. The 1961 amendment eliminated the “ ‘high hur-

dle’” that an applicant for waiver faces “ ‘even at the

starting gate.’”» WAIT Radio, 459 F.2d at 1207, quoting

WAIT Radio v. FCC, 418 F.2d 1158, 1157 (D.C. Cir.

19 *

1969) ; it did not lower all of the obstacles in WNYC’s

path. The inescapable fact is that WNYC is a Class-II

station seeking authority to broadcast at night on a clear

channel station and that the Commission’s rules prohibit

this.

Moreover, this case has always been viewed as a request

for a waiver, albeit a somewhat unique one. For example,

the Hearing Examiner in 1957 explicitly discussed the

waiver issue in recommending that WNYC’s SSA be ex-

tended. She characterized the rule providing for SSA’s

as a “recognition of th[e] basic principle” that the Com-

mission “is not the prisoner of its own regulations and

that the public interest .. . must always take precedence

over strict compliance with the provisions of the Rules,”

15 Rad. Reg. (P & F) at 635-36, and noted that

[t]he courts also recognize and sanction this prin-

ciple .... The Supreme Court and the Court of

Appeals have both recognized that there are circum-

stances where the Commission’s Rules must be waived

to authorize operations contrary to their specific

terms.

Id. at 636, citing United States v. Storer Broadcasting

Co., 351 U.S. 192 (1956); City of New York Municipal

Broadcasting System v. FCC, 223 F.2d 687 (D.C. Cir.

1955). And in 1964, along with its application for a

construction permit, WNYC itself filed a petition for

waiver of the Commission’s rules. In re City of New

York Municipal Broadcasting System (WNYC), 1 F.C.C.

2d 1370, 1871 (1965). Finally, although the Commission

did not expressly discuss the issue in the decision now

under review, the Commission has styled this proceeding

as a request for waiver. Issue six in this proceeding

states that the Commission would

determine whethér, in the light of the interference

that would be received, the proposed 50kw nighttime

operation of station WNYC would be consistent with

the Commission’s rules, and, if not, whether cir-

cumstances exist that would warrant a waiver of

that section.

In re City of New York Municipal Broadcasting System

(WNYC), 33 F.C.C.2d 285, 289 (1972) (emphasis

added). That WNYC has been granted temporary au-

thority to operate at night does not lighten the “heavy

burden” that it must bear in seeking a waiver of estab-

lished rules, WAIT Radio, 459 F.2d at 1207, although

the grant of temporary authority is somewhat probative

of what the FCC considers to be in the public interest.

Both the history of this case and a common-sense look at

what WNYC is asking for indicate that this is and has

always been a waiver case, however unique or special.

WNYC’s argument that the Commission decided a case

not litigated must fail.

Whether or not this is a waiver case, section 706 of

the Administrative Procedure Act specifies the scope of

our authority when reviewing an agency’s determination.

5 U.S.C. § 706 (1982). We are to set aside an agency’s

action only where it is “arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law,”

and, where a hearing has been held, if the agency’s de-

terminations are “unsupported by substantial evidence.”

5 U.S.C. § 706(2) (A), (E) (1982). This statute ade-

quately defines our task here. In reviewing the Com-

mission’s determintation we cannot lose sight of the fact

that granting WNYC’s request. would involve making an

exception to the current rules prohibiting stations of its

type from broadcasting at night on clear channel fre

quencies and that those exceptions are rarely granted.

We also review this decision bearing in mind the defer-

ence we owe “the Commission’s recognized expertise on

. . . technical issues.” WSTE-TV, Ine. v. FCC, 566 F.2d

333, 335 (D.C. Cir. 1977).

In reversing the decision of the ALJ, the Commission

made findings as to six of the issues: Issue 1—WNYC’s

men

ian De Uae

areas and populations; Issue 3—-WNYC interference with

WCCO; Issues 10 and 11—WNYC’s programming and

New York City’s special needs and requirements; Issue

13—the use of WNYC to satisfy needs; and, Issue 15—

fair, efficient, and equitable distribution of radio service.

As to Issue 1, the Commission accepted the ALJ’s find-

ings that the proposed 50 kW nighttime operation would

increase WNYC’s nighttime coverage from slightly over

50% to 99.7% of New York City—a population of

7,869,972. The Commission also found that New York

City has licensed to it twenty-eight full-time commercial

aural services and three educational stations, with an

additional eighteen commercial aural services and four

educational stations licensed within the New York Stand-

ard Metropolitan Statistical Area outside of New York

City. No area in WNYC’s current or proposed nighttime

service areas receives fewer than five primary nighttime

aural signals. 91 F.C.C.2d at 639.

WNYC does not contest these findings; in fact, WNYC’s

Initial Brief rehearses them at length, all to the end of

demonstrating that the population that is losing primary

nighttime service which has been available to them since

1942—-numbering 4,388,100—is “greater than that of

many states of the Union.” Initial Brief of Appellant

WNYC at 18-19. That is true, but as the Commission

found with respect to Issue 3—WNYC interference with

WCCO—WNYC’s 1 kW nighttime operation causes ob-

jectionable interference in a large portion of WCCO’s

area of secondary service, including portions of Michi-

gan, New York, Pennsylvania, Ohio, West Virginia,

Kentucky, Tennessee, and Mississippi. Also, although

“WNYC’s proposed 50 kW operation would, because of

directionalization, result in a reduced amount of inter-

ference, [it would still affect] 7,158,600 people in 125,800

square miles.” 91 F.C.C.2d at 640. This would include

51,000 people with no primary aural signals (white

areas) and 195,100 people with only one other primary

aural signal (gray areas), although all portions of the

interfered areas receive at least ten other secondary serv-

ices. Id.

The most important of WNYC’s arguments is that

since 1924 it “has a consistent history of programming

in the public interest and serving special needs and re-

quirements,” Initial Brief of Appellant WNYC at 35,

and that the value of this programming outweighs that

of “yet another secondary service in an area served by

at least ten other secondary services and in an area to

which WCCO does not now—nor does it in the future

intend to—program.” Id. at 24. Apparently aware that

the strength of its programming is the most compelling

reason in favor of granting its application, WNYC’s

brief discusses at length the 45% of broadcast time de-

voted to public affairs, instruction and information, the

35% of time given to classical music programs, the 20%

of time spent on spoken word and talk, including read-

ings and drama, and the 5% of time dedicated to folk

and ethnic music.”*

The Commission did not ignore WNYC’s programming.

In fact, the Commission expressly found that WNYC’s

programming “is highly meritorious and that curtailing

such programming would be undesirable.” 91 F.C.C.2d

at 642. But, according to the Commission, “[t]he des-

ignated issue requires WNYC to show more than that its

programming is meritorious or that it serves community

needs.” Jd. Relying on its decision in WOI, the Commis-

sion held that “a demonstration of special needs and re-

quirements entails: first, that no other station provides

the service area with substantially similar programming,

and, second, that any unique programming would not be

effective if presented during the day by the applicant.”

Id. at 643."

41 All of these numbers are approximations, Initial Brief of

Appellant WNYC at 11-12, which is presumably why they add

up to 105%.

12 The first part of this test calls for an examination of the

programming of New York City’s other radio stations. As the

WNYC attacks the Commission’s use of this test on

two grounds. First, WNYC argues that it was improper

to rely on the WOI case because the issues were so dif-

ferent. Reply Brief of Appellant WNYC at 4-7. Second,

even accepting the applicability of WOJ, the record is

said to support a finding that WNYC met the test pre-

scribed to demonstrate the special needs and requirements

as determined in that case. Initial Brief of Appellant

WNYC at 40-42. We address these contentions in order.

Commission acknowledged, however, “the record is somewhat

deficient in this regard, because .. . a previous ALJ improvi-

dently restricted the introduction of evidence on this point.”

91 F.C.C.2d at 643 (footnote omitted). Nevertheless, the Com-

mission concluded that it was “able to draw meaningful con-

clusions based on the existing record”—‘“an assessment of

other stations by WNYC’s Program Director” and “a survey

by WCCO of programming listed in other station[s’] renewal

applications.” Id. at 643 & n.26.

WNYC contends that it was “grossly unfair’ and “reversi-

ble error for the Commission to base its decision upon an issue

as to which WNYC was precluded from submitting evidence.”

Initial Brief of Appellant WNYC at 43. Moreover, according

to WNYC, the evidence submitted by WCCO about other sta-

tions’ programming “lack[s] probative value.” Id.

Although a comprehensive record is obviously preferable to

one that is “somewhat deficient,” we do not think the Commis-

sion committed reversible error by relying on this evidence to

draw conclusions about other stations’ programming. We

think so for three reasons. First, the evidence presented by

WCCO and relied upon by the Commission was based upon the

renewal applications submitted by radio stations seeking to

renew their licenses. These are official documents on file with

the Commission and it was not arbitrary for the Commission

to assume that they are not “‘a bunch of lies.” Initial Brief

of Appellant WNYC at 44, citing Transcript at 5488. Second,

it is relatively common knowledge that “other New York

Metropolitan area stations provide substantial amounts of in-

formation programming, minority oriented programming, and

classical music.” 91 F.C.C.2d at 644. Finally, WNYC itself

submitted evidence on this point that the FCC considered.

The Commission was completely correct in character-

izing the WOI case as the “leading, if not the only, prece-

dent” for this case. Brief for FC at 33. As we have

shown, throughout the long history of this proceeding

“the Commission has drawn numerous parallels between

the situation of WOI and of WNYC. See supra pp. 10-11

& note 9. Aside from a limitation to 1 kW of power ap-

plied to WOI and not WNYC, the substance of the notes

to amendments to the clear channel rules are indistin-

guishable. The factual situations are almostly exactly

the same—Class II stations whose nighttime operation

caused co-channel interference to a dominant clear chan-

nel station. That WOI interfered with its competitor’s

primary service goes only to the extent of the interfer-

ence—a factor to be balanced against the special needs

and requirements of the local areas served by the inter-

fering stations. WNYC contends nevertheless that the

WOI case is inapposite because the issue there was

framed differently than was the issue here. Comparison

of the two is worthwhile to demonstrate both the simi-

larity of the issues and the slenderness of the reed on

which WNYC rests. The programming issue established

by the FCC in WOI was phrased as follows:

To determine the type and character of program

service to be rendered by the proposed presunrise

operation of Station WOI, whether the same gen-

eral program service is being rendered by any other

station or stations serving all or part of the area

proposed to be served by station WOI, and whether

the proposed WOI program service would serve any

special needs and requirements of the population

and areas proposed to be served.

19 F.C.C.2d 36, 42 (1969) (emphasis in original). The

programming issue delineated for WNYC was:

To determine the type and character of the program

service proposed to be rendered by station WNYC

and whether and to what extent WNYC’s daytime

and nighttime proposed programming would serve

special needs and requirements of the populations

and areas proposed to be served.

In re City of New York Municipal Broadcasting System

(WNYC), 33 F.C.C.2d 285, 290 (1972) .*

WNYC argues from this that WOI was required to

prove that its programming was unique or essential

whereas WNYC had only to show that its programming

served special needs and interests. Reply Brief of Ap-

pellant WNYC at 5. This argument is unconvincing.

Whether a radio station is serving an area’s “special

needs and requirements” necessarily involves a determi-

nation whether other radio stations are addressing those

same needs. An area’s needs cannot truly be said to be

“special” such that an additional station is necessary un-

less those needs are under-served. Otherwise, by WNYC’s

logic, the Commission intended for it to be given its ex-

emption even if all 53 stations in the New York metro-

politan area were addressing the needs of a group special

to New York City—United Nations diplomats, for ex-

ample. Plainly that is not what the Commission intended.

Both WOI and this case involved extraordinary circum-

stances which the Commission had specially considered

when amending its clear channel rules. Even though the

facts of WOI were not the same in all respects as the

facts here, the long history of this proceeding compels

18 The similarity of these two proceedings is further demon-

strated by the fact that the programming issue the Commis-

sion established for WNYC in 1954 was word for word the

same as the issue in the WOI proceeding. In re City of New

York Municipal Broadcasting System (WNYC), FCC 54-1463

(Dec. 6, 1954) ; J.A. at 2.

4 As WNYC correctly points out, there are differences be-

tween the WOI case and the situation here. For example,

WOI was causing interference to KFI’s area of primary serv-

ice and the unique program that the Initial Decision granting

authority had been predicated upon was being carried at the

same time by another AM station. Initiai Brief of Appellant

the conclusion that the Commission acted properly in con-

sidering WOI in deciding WNYC’s case.

We turn next to the Commission’s application of the

WOI test. The Commission first found that while “[a]t

least some of WNYC’s programming appears to be

unique” when compared with the programming of other

stations, and that “SSA hours are used for at least some

of these programs... other stations do provide at least a

rough equivalent of WNYC’s programming” in a number

of other substantive areas. 91 F.C.C.2d at 643-44.

On balance, we find it most significant that other

New York Metropolitan area stations provide sub-

stantial amounts of information programming, mi-

nority oriented programming, and classical music,

supplementing that of WNYC. The fact that these

stations may not provide the breadth of WNYC’s

programming or that in some narrow subcategories

other stations do not provide programming similar

to WNYC’s is not as significant. Moreover, the fact

that with few exceptions, such as live coverage of

hearings, WNYC’s programming culd [sic] be broad-

cast during the day and still benefit New Yorkers,

strongiy militates against a finding that the SSA

hours are necessary to serve the special needs and

interests of New York City.

Id. at 644.

WNYC contends that the record in no way supports

this conclusion, for “there is no other broadcast station

in New York, or the area, which can compare to WNYC

in quantity or quality of public service programming.”

Initial Brief of Appellant WNYC at 44. The Commis-

sion’s decision is not inconsistent with this assertion.

The Commission simply determined that other stations,

WNYC at 41-42. A case need not be identical, however, to be

relied upon for support. This is particularly true where, as

here, the case relied upon is the only other case to arise in the

same unique procedural setting as the case being decided.

taken as a whole, provide substantially similar program-

ming, though lacking some of the breadth of WNYC’s

programming. This is a rational determination, sup-

ported by substantial evidence, and we cannot displace

it. Moreover, this finding is not crucial to the Commis-

sion’s holding in this case, for the Commission also found

that much of WNYC’s programming could be broadcast

during the day and that WNYC-FM, which broadcasts at

night, “can adequately substitute for any loss of service

from WNYC.” 91 F.C.C.2d at 644.%

WNYC also challenges the determination that WNYC-

FM is a suitable substitute for time lost to the AM sta-

tion on two grounds: (1) that “the FCC’s suggestion

that WNYC programming be run on WNYC-FM is di-

rectly contrary to established Commission policy .. .

requiring . . . separate programming over AM and FM

facilities;’ and, (2) that “two broadcast facilities

(WNYC and WNYC-FM) totally and exclusively pro-

gramming to the public service and serving separate

needs cannot assume the functions of one another with-

out a concomitant (and here severe) loss to the public.”

Initial Brief of Appellant WNYC at 46-47.

We see no reason to doubt the Commission’s finding

that “[t]here are no technical or legal obstacles to shift-

ing programming from WNYC to WNYC-FM.” 91

F'.C.C.2d at 647.7° To the extent that separate program-

15 It is for this reason, too, that the Commission’s use of the

evidence submitted by WCCO as to the programming of other

stations does not constitute reversible error. The other

grounds for the Commission’s decision—that the loss of time

can be compensated for by shifting programming to WNYC-

FM or to daytime hours—are more than sufficient to support

the Commission’s decision.

16Tn making this determination, the Commission was dis-

agreeing with the ALJ’s finding that “technical obstacles ex-

ming is necessary to satisfy Commission nonduplication

policy and the requirements of National Public Radio

funding, we note that there has been a “significant

amount of duplication between the AM and FM sched-

vles’—as much as 20% since 1972 and nearly 40% prior

to 1972. Id. at 647 & n.45. It is certainly rational for

the Commission to conclude that reducing this duplica-

tion would not adversely affect the public interest.

As for WNYC’s second contention, we agree that it

would be preferable for New York City listeners to have

WNYC-AM and WNYC-FM each broadcast independ-

ently for the maximum number of hours possible. The

public interest is somewhat harmed by placing WNYC

management in a position where it must co: pensate for

loss of SSA hours to WNYC-AM by broadcasting over

WNYC-FM programming it would have preferred to

broadcast over WNYC-AM. The precise extent of the

harm, however, and whether it is offset by the added

service to those in WCCO’s area of secondary service, is

a matter within the special competence of the Commis-

sion to decide. See infra p. 31. Moreover, the Com-

mission was plainly correct in noting that the loss of

WNYC’s SSA authority would be mitigated in part if

WNYC were to replace some of the classical musical pro-

grams carried by WNYC-FM with informational pro-

gramming. Other New York stations continue to broad-

cast classical music formats.

Finally, the Commission has in the past, in WOI as

well as in other cases, viewed FM as a substi*ute for AM.

91 F.C.C.2d at 646 & nn.36, 37, citing WOI and Pre-

isted to the reception of WNYC-FM.” 91 F.C.C.2d at 644-45.

The Commission “now recognize[s] FM as a service equal to

AM with a signal of equal or superior technical quality.” /d.

at 646. WNYC does not challenge the Commission’s use of

FM on this ground, apparently recognizing that this is pre-

cisely the kind of “technical issue” within the FCC’s expertise

to which we owe a substantial degree of deference. WSTE-TV,

Inc., 566 F.2d at 335.

sunrise Operation, 18 F.C.C.2d 705 (1969). See City of

New York Municipal Broadcasting System, 11 F.C.C.2d

at 291-92. See also Easton Publishing Co. v. FCC, 175

F.2d 344 (D.C. Cir. 1949); In re Radio Rockford, Inc.,

6 Rad. Reg. 2d (P & F) 907 (1966); In re Richmond

Broadcasting Co., 25 Rad. Reg. (P & F) 181 (1963).

In sum, the Commission has previously considered the

availability of FM in cases like this one, there is a sub-

stantial amount of overlap in the programming of the

AM and FM station, and the FM station’s programming

is primarily entertainment programming. As such, we

cannot conclude that the Commission acted improperly in

finding that WNYC-FM is an adequate substitute for the

loss of WNYC-AM’s authority to broadcast at night.”

17 WNYC also objects that the Commission made arbitrary

use of official notice in considering 1979 figures from the

Electronic Industries Association on the degree of FM set

penetration as well as recent Arbitron data. This data indi-

cates that nearly 75% of all home radios and more than 50%

of all automobile radios have FM capacity, that more than half

of the radio listening in New York City is accounted for by

FM, and that ten of the top twenty radio stations in New York

are FM stations. 91 F.C.C.2d at 646. WNYC objects that

interjecting these 1979 figures into a record that was closed

in 1977 was “patently untimely.” Initial Brief of Appellant

WNYC at 51. WNYC, however, did not accept the Commis-

sion’s invitation to “rebut this information by filing [a] peti-

tion[{] for reconsideration,” 91 F.C.C.2d at 645 n.34, neither

did WNYC request additional time to contest the data or to

‘submit contrary evidence. Moreover, we think that this is

precisely the sort of fact of which an agency may take official

notice. See generally Fed. R. Evid. 201(a) advisory committee

note (“‘Adjudicative facts are simply the facts of the partic-

ular case. Legislative facts, on the other hand, are those which

have relevance to legal reasoning and the lawmaking process,

whether in the formulation of a legal principle or ruling by a

judge or court or in the enactment of a legislative body.’’) ;

38 K. Davis, Administrative Law Treatise § 15.11, at 185

(1980) (“Should Disputable Legislative Facts Be Noticed?

The clear answer is: Of course.’’).

We come now to the heart of the matter—the public

interest determination. The issue in this case has always

been “whether, balancing the interference caused to

WCCO against the service WNYC renders during night-

time hours, the public interest would be served by con-

tinuing to permit WNYC’s nighttime operation, for which

no provision is made in the AM rules governing the use

of class I-A frequencies.” In re Clear Channel Broad-

casting in the Standard Broadcast Band, 31 F.C.C. 565,

591 (1961). The balance, however, did not begin in

equipoise. From the start, it tilted toward WCCO and

the Commission’s rules. As the Commission said,

[t]his is not a comparative hearing between WNYC

and WCCO. WCCO is not an applicant. WNYC is

the applicant, and as such, properly has the bur-

den of establishing that its proposed presunrise and

postsunset program service would serve special needs

and requirements of the populations and areas pro-

posed to be served by it and, further that the public

interest would be served by such proposed program

service, in the light of the nature and character of

WCCO’s program service to the areas and popula-

tions affected by interference from WNYC.

29 F.C.C.2d at 249.

WNYC’s general contention is that the public interest

is not served by extinguishing the nighttime public serv-

ice it provides to four million people, and denying en-

hanced service to another ten million, in order to provide

an additional secondary service to areas served by at

least ten other secondary services. This is especially true,

argues WNYC, where the station providing that addi-

tional secondary service does not gear its programming

to the area in which it interferes. Initial Brief of Ap-

pellant WNYC at 38-39. This argument is not without

some force, and it was good enough to convince the ALJ.

But the Supreme Court has made clear that

be A SON er od ee

the Commission’s judgment regarding how the pub-

lic interest is best served is entitled to substantial

judicial deference. See, ¢.g., FCC v. National Citizens

Committee for Broadcasting, [436 U.S. 775 (1978)];

FCC v. WOKO, Inc., 329 U.S. 228, 229 (1946)....

The Commission’s implementation of the public-

interest standard, when based on a rational weigh-

ing of competing policies, is not to be set aside by

the Court of Appeals, for “the weighing of policies

under the ‘public interest’ standard is a task that

Congress has delegated to the Commission in the

first instance.” FCC v. National Citizens Committee

for Broadcasting, [436 U.S.] at 810.

FCC v. WNCN Listeners Guild, 450 U.S. 582, 596

(1981).

Here, the Commission rationally weighed the compet-

ing policies. That weighing led it to the conclusion that

“considerations of fair, efficient, and equitable service

favored granting WNYC’s 50 kW nighttime proposal.”

91 F.C.C.2d at 647. To the Commission, the meritorious

nature of WNYC’s programming was outweighed by:

the importance of clear channel broadcasting and the in-

terference with a large portion of WCCO’s clear channel

service; the fact that WNYC’s nighttime services are not

essential to serve special needs and requirements as the

Commission defined those terms in WOI; the substantial

amount of similar programming of the same general type

(although not of the same breadth and intensity) pro-

vided by other New York City stations; that most of

WNYC’s SSA programming would be equally effective

during the day; the availability of WNYC-FM to serve

as a substitute for especially important nighttime pro-

gramming; the “exceptionally large complement of both

commercial and noncommercial stations” serving New

York City; and the extent to which the interference

areas, including the white and gray areas, are less well

served. Id. at 648.

It is to be regretted that the many years of outstanding

programming provided WNYC-AM at night will now

come to an end. But we recognize that while residents

of New York City suffer a loss, listeners in parts of

eight different states will now have an opportunity, pre-

viously denied to them, to enjoy the programming of

WCCO. Choosing between these two groups was a deter-

mination for the Commission. After many years of care-

ful consideration, the Commission has concluded that “the

limited AM operation as supplemented by the FM opera-

tion should be sufficient to meet the realistic special needs

of New York City and that WNYC has not met the

heavy burden of justifying a waiver of the fundamental

allocation policy involved here.” 91 F.C.C.2d at 648. The

Commission’s decision was based upon full exploration of

the issues and is amply supported by the evidence.” It

must therefore be

Affirmed.

18 WNYC’s final argument, first advanced in its petition for

reconsideration, is that greater interference to WCCO’s sec-

ondary service area is caused by station YVLT in San Antonio,

Venezuela, and that the Final Acts of the Regional Adminis-

trative MF Broadcasting Conference (Region 2), Rio De

Janiero, Decembeg 19, 1981, to which the United States is a

signatory, accepted interference from a foreign station to the

skywave service area of WCCO. Petition for Reconsideration

of WNYC at 4-5; J.A. at 647-48. WNYC argues that

“Tb]ased upon the domestic criteria, the interference caused

by YVLT to WCCO far exceeds the interference caused by

the proposed 50 KW DA operation of WNYC on 830 kHz.”

Petition for Reconsideration of WNYC at 5; J.A. at 648.

Therefore, “‘the interference accepted by virtue of The Final

Acts to the service area of WCCO substantially and critically

undermines the basis of the Decision herein.” Petition for

Reconsideration of WNYC at 6; J.A. at 649.

The Commission properlv rejected this argument on two

grounds. First, WNYC’s argument was untimely, and there-

fore procedurally defective. Station YVLT has been broad-

casting over 830 kHz at 50 kW power, nondirectional, since

1974. In re City of New York Municipal Broadcasting

(WNYC), FCC 83-232, at 2 (1983) (Petition for Reconsidera-

tion) ; J.A. at 672. The physical fact of interference from

YVLT was therefore not newly discovered evidence and could

have been raised at the hearing. Jd. Second, the additional

interference to WCCO from WNYC is not de minimis because:

“approximately 710,000 people in an area of about 13,758

square miles would be subject to interference from [WNYC’s]

proposed operations, but not from YVLT’s”; the signals of

WNYC and YVLT wil! often interfere with WCCO’s pro-

tected signal at different times and in different places; and,

“WNYC’s signal, when combined with the signal from YVLT,

substantially increases the interference within WCCO’s

groundwave and protected skywave service contours.” Peti-

tion for Reconsideration at 3; J.A. at 673. This increase in

interference is due to the fact that radio interference is addi-

tive. See R. Gagliardi, Introduction to Communications Engi-

neering 108-04 (1978).

No. 83-1663

IN THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

SEPTEMBER TERM, 1983

CITY OF NEW YORK MUNICIPAL BROAD-

CASTING SYSTEM,

Appellant,

FEDERAL COMMUNICATIONS COMMISSION,

Appellee,

WCCO RADIO, INC.,

Intervenor.

ORDER

[Filed SEP. 21, 1984]

It is ORDERED, sua sponte, that the Clerk

shall withhold issuance of the mandate herein until

seven days after disposition of any timely petition

for rehearing. See Local Rule 14, as amended on

November 30,1981 and June 15, 1982. This

instruction to the Clerk is without prejudice to the

right of any party at any time to move for expedited

issuance of the mandate for good cause shown,

FOR THE COURT

GEORGE A, FISHER

CLERK

No, 83-1663

IN THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

SEPTEMBER TERM, 1983

CITY OF NEW YORK MUNICIPAL BROAD-

CASTING SYSTEM,

Appellant,

FEDERAL COMMUNICATIONS COMMISSION,

Appellee,

ORDER

[FILED SEP, 25, 1984]

It is ORDERED, by the Court, sua sponte, that

the Opinion for the Court filed by Circuit Judge

Bork on September 21, 1984 be, and hereby is,

amended as follows:

Page 1, delete the date "March 9, 1983"

and insert in lieu thereof the date

"March 9, 1984”.

For The Court

George A. Fisher

Clerk

City of New York Municipal B/cing 635

Air Hazard Menace to Air Navigation

AM Station, Class I, Clear Channel

Interference Nighttime

Special Service Authorization

Application for Special Service Authorization to operate during

nighttime hours denied because of interference to clear channel

operation. Applicant’s service found inadequate to justify waiver.

Application for new facilities denied because proposed tall tower

would be an air hazard.

—City of New York Municipal B/cing

Docket No. 11227

FCC 82-428

BEFORE THE

FEDERAL COMMUNICATIONS COMMISSION

WASHINGTON, D.C. 20554

In re Applications of

CITY OF NEW YORK MUNICIPAL Docket No.

BROADCASTING SYSTEM (WNYC) 11227

New York, New York File No.

BSSA-266

For Special Service Authorization

CiTy OF NEW YORK MUNICIPAL Docket No.

BROADCASTING SYSTEM (WNYC) 17588

New York, New York File No.

BP-16148

WCCO Rapio, Inc. (WCCO) Docket No.

Minneapolis, Minnesota 19403

File No.

BP-19151

For Construction Permits

Appearances

Alfred J. Tighe, Jr. (Brown & Tighe), Charles S. Rhyne, William S.

Rhyne and David M. Dizon (Rhyne & Rhyne), Allen G. Schwartz,

Thomas P. Brown, III, Sheila Mahony, J. Lee Rankin, Norman Redlich,

A 39 91 F.C.C. 2¢

636 Federal Communications Commission Reports

Evelyn Junge, Eugene Margolis, Adrian P. Burke, Gary Mailman,

Joseph Bruno and John C. Brennan on behalf of the City of New York

Municipal Broadcasting System; Peter Shuebruk, Jerome S. Boros,Jack

P. Blume, Benito Gaguine and Alan B. Kaufman (Fly, Shuebruk,

Blume, Gaguine, Boros, Schulkind & Braun) on behalf of WCCO Radio,

Inc.; Jerome Getz, Warren Spannaus, Richard B. Allyn, Lawrence

Schwab and Peter W. Sipkins on behalf of the State of Minnesota; Staley

Cohen (Cohn and Marks) on behalf of WHAS, Inc.; Mark T. McDermott

and Robert D. Powell and on behalf of the National Business Aircraft

Association; John S. Yodice and Charles J. Peters on behalf of the Aircraft

Owners and Pilots Association; Daniel W. Toohey, Richard D. Marks and

Tood D. Gray (Dow, Lohnes & Albertson) on behalf of Ohio State Univer-

sity; and Lawrence Bernstein, Charles W. Kelley, Walter C. Miller,

Thomas B. Fitzpatrick, P. W. Valicenti, Roderick K. Porter and Arthur

I. Steinberg on behalf of the Chief, Broadcast Bureau, Federal Communi-

cations Commission.

Decision

Adopted: September 23, 1982; Released: October 4, 1982

BY THE COMMISSION: COMMISSIONER QUELLO APPROVING IN

PART AND DISSENTING IN PART AND ISSUING A STATEMENT;

COMMISSIONER WASHBURN DISSENTING TO THE DENIAL OF

WCCO’s APPLICATION; COMMISSIONER FOGARTY NOT

PARTICIPATING.

I. Introduction

1. The City of New York Municipal Broadcasting System (WNYC)

operates stations WNYC-AM, FM, and TV. WNYC-AM, the subject of

these proceedings, is a 1 kW daytime-only station licensed on 830 kHz.

Since 1943, the Commission has permitted WNYC to operate from 6:00

am to 10:00 pm pursuant to various temporary Special Service Authoriza-

tions (SSA). These were originally granted to provide “needed wartime

services." During pre-sunrise and post-sunset SSA operation, WNYC

causes co-channel interference to station WCCO, Minneapolis, Min-

nesota, a Class I-A clear channel station licensed to WCCO Radio, Inc.

(WCCO).* WNYC’s SSA operation curtails and interrupts’ WCCO’s oth-

' Petition to Cancel SSA, filed July 21, 1954, by WCCO at 3. Previously the Commission had denied

WNYC's request for permanent nighttime authority. City of New York Municipal Broadcasting

System, 9 FCC 169 (1942).

? The clear channels were allocated to permit wide area service by dominant (Class I) stations. Such

service is provided by either single (Class I-A) or multiple (Class I-B) stations. Other stations

providing either wide area or localized service (Class I1) may be assigned to the clear channels

91 F.C.C. 2d

A 40

City of New York Municipal B/cing 637

erwise protected nighttime operation from one to nearly six hot s a

night, depending on the time of the year.‘ Thus, without SSA authoriza-

tion, WNYC would be required to sign on no earlier than local sunrise in

New York City and sign off no later than sunset in Minneapolis to avoid

objectionable interference. During the summer this limitation on

WNYC'’s authority would have little effect because local sunrise occurs

earlier than 6:00 am EST and sunset in Minneapolis occurs as late as 9:00

pm EST. However, during the winter, the daytime limitation would

substantially curtail WNYC’s service, because WNYC would be required

to sign off as early as 5:30 pm EST.

2. In 1954, because of WCCO’s objection, WNYC’s then pending SSA

application was designated for hearing.*® An Initial Decision issued® rec-

ommending a grant of SSA authority, but the Commission held the

proceeding in abeyance without ruling on the exceptions because of the

pending clear channel proceeding. In 1963, following issuance of the

Commission's 1961 Clear Channel Decision,’ the Commission reactivated

this proceeding. That Decision lifted a previously imposed freeze on the

assignment of Class II stations on the 25 clear channels with Class I-A

stations to the extent of permitting the assignment of a single Class [I-A

station on 11 (later 12) of the channels and a Class II-B station\on two

additional channels. The Class II-A stations were restricted to specified

provided they do not subject the pertinent Class I station to objectionable interference as defined by

the Rules. See Section 73.21(a) of the Rules; See also Clear Channel AM Broadcasting, 78 FCC 2d

1345, recon. denied, 83 FCC 2d 216 (1980), aff'd sub nom. Loyola University v. FCC, No. 80-1824

(D.C. Cir. January 26, 1982) (hereinafter 1980 Clear Channel Decision). Station WCCO was

formerly licensed to WCCO Radio, Inc.'s parent corporation Midwest Radio-Television, Inc. See

FCC 81M-1669, released May 29, 1981.

3 WCCO operates 24 hours a day.

* SSA authorization is required for WNYC to operate at the following hours (EST):

January 6:00 am—7:15 am 6:00 pm—10:00pm

February 6:00 am—6:45 am 6:45 pm—10:00pm

March 6:00 am—6:15 am 7:15 pm—10:00 pm

April 8:00 pm—10:00 pm

May 8.30 pm—10:00 pm

June 9:00 pm—10:00 pm

July 9:00 pm—10:00 pm

August 8:15 pm—10:00 pm

September 7:30 pm—10:00 pm

October 6:30pm—10:00 pm

November 6:00 am—6:45 am 5:45 pm—10:00 pm

December 6:00 am—7:15 am 5:30 pm—10:00 pm

Thus, the number of SSA hours needed to provide uniform service from 6:00 am—10:00 pm EST

varies from 5 “% hours in December to 1 hour in June and July. WNYC Exhs. 72-3, 72-4; WCCO

Exh. 72-17, App. L

5 FCC 54-1463, released December 6, 1954. WCCO had also objected in whole or in part to previous

grants. Petition to Cancel SSA, supr ~ note 1.

* FCC 57D-53, released July 8, 1957.

* Clear Channel Broadcasting, 31 FCC 565 (1961).

91 F.C.C. 2d

638 Federal Communications Commission Reports

locations with no other primary nighttime service (“white areas”). The

Clear Channe! Decision, as well as subsequent clear channel decisions,

expressly declined to resolve the WI YC-WCCO controversy. WNYC

subsequently, pursuant to a Commission suggestion, applied for perma-

nent authority to operate during the SSA hours and for a change of

antenna site and increase in power to 5€ kW.

3. In 1972 the Commission redesignated the issues and consolidated the

proceedings with an application by WCCO to relocate and increase the

height of its antenna.* Hearings were concluded and the record was closed

on August 24, 1977.

4, Administrative Law Judge Frederick W. Denniston in a Supplemen-

tal Initial Decision’ granted WNYC’s applications for permanent night-

time authority and for a new antenna site and higher operating power.

The ALJ denied WCCO’s application for modification of its antenna. The

ALJ found that WNYC provided a uniquely valuable service to New York

City, for which WNYC-F™M was not an adequate substitute. This service

justified, in the ALJ’s view, granting nighttime operation despite the fact

that such operation causes objectionable interference to the eastern

portion of WCCO’s nighttime secondary service area and would violate

the Commission's 10% rule."° The ALJ granted WNYC’ application for 50

kW operation because it would reduce, through directionalization, the

degree of interference to WCCO and would significantiy increase

WNYC'’s coverage of New York City. The ALJ denied WCCO’s request to

relocate and increase the height of its antenna finding that the proposed

tall tower would be an air hazard. The ALJ also removed a condition

which made any grant to WCCO contingent on the outcome of the Cowles

Broadcasting, Inc. proceeding, involving the character qualifications of a

related coporation.

5. WNYC, WCCO, the Broadcast Bureau, and three intervenors” filed

Exceptions to the Supplemental Initial Decision and Replies.* WCCO

requested oral argument. Additionally, on April 10, 1981, WCCO pati-

tioned for an order to show cause why WNYC should not accept’.

proposed change in frequency to 820 kHz.” The Commission heard oral

argument on July 21, 1982.

* 33 FCC 2d 285 (1972).

* FCC 78D-—36, released June 29, 1978 (hereinafter Supplemental Initial Decision or SID).

‘© The 10% rule provides that interference from other stations may not affect a station's service to more

than 10% of the population within the station's normal interference free service area.

'! The intervenors, the State of Minnesota, the National Business Aircraft Association (NBAA) and

the Aircraft Owners and Pilots Association (AOPA) are concerned only with the air hazard issue.

'2 Pleadings under consideration are: Limited Exceptions filed July 9, 1979. by the State of Minnesota:

Exceptions filed July 10, 1979, by WCCO and by the Bureau; Limited Exceptions filed July 10, 1979.

WNYC, by AOPA, and by NBAA: Replies filed December 21, 1979, by WCCO, by WNYC. by

AOPA. and by NBAA: and a Reply filed April 10, 1979, by the Bureau.

Pleadings relating to the Petition for Order to Show Cause are: an Opposition filed May 7. 1981. by

the Bureau; an Opposition filed July 15, 1981, by Ohio State University, a potentially mutually

exclusive applicant for an authorization on 820 kHz: a Motion to Strike filed May 7. 1981. by WNYC:

and an Opposition to the Motion to Strike, filed May 26, 1981. by WCCO

91 F.C.C. 2d

A 42

a DN ee IN RS ne

City of New York Municipal B/cing 639

6. We have examined the findings and conclusions of the ALJ as set

forth in the Supplemental Initial Decision,“ the arguments of the parties,

and the record, and we conclude that WNYC has not established that its

programming is required to satisfy the special needs and requirements of

its service area which would justify its interference to clear channel

station WCCO, Minneapolis, Minnesota. In light of this conclusion, we

need not consider those exceptions concerning the alleged prejudice of

WNYC'% proposed operation to the future development of adjacent chan-

nels (Issue 7); WNYC’s alleged violation of the 10% Rule (Issue 6); the

availability, maintenance and suitability of WNYC’s proposed antenna

site (Issues 8, 9, and 19); WNYC'’s alleged violation of Section 1.65 of the

Rules (issue 20); WN YC’s financial qualifications (Issue 21); and WNYC’s

ascertainment of community needs (Issue 12). With respect to WCCO’s

application for new facilities, we find that its proposed antenna will be an

air hazard, and we agree with the ALJ that its application should be

denied.

IT. WNYC’s Applications for Nighttime Operation

A. WNYC’s areas and populations—Issue 1."

7. The ALJ found that WNYC's present nighttime or SSA operation”

serves 4,388,100 people in an area of 138 square miles. The entire service

area lies within but does not cover the entire city of New York. WNYC's

proposed 50 kW nighttime operation would serve 9,926,159 people in an

area of 658 square miles, which would include portions of New Jersey and

Connecticut as well as additional coverage of New York City. The 50 kW

proposal would increase WNYC’s nighttime coverage of New York City

from slightly over 50% to 99.7% (7,869,972).

8. All of the areas in WNYC'’s present and proposed nighttime service

areas receive at least five primary nighttime aural signals. New York City

‘as 28 full-time commercial aural services and 3 educational stations

dcensed to it, with an additional 18 commercial aural services and 4

edicational stations licensed within the New York SMSA outside of New

York City.

B. WNYC interference to WCCO—Issue 3.

9. The ALJ found® that WNYC’s nighttime operations causes no

objectionable interference to WCCO’s primary (groundwave) service

'* Those findings and conclusions are adopted except as modified by this decision.

'’ The facts underlying this issue and Issue 3 are not materially disputed. Those facts. however. are

crucial to an evaluation of the need for WN YC’s programming and the extent of its interference with

WwCCo.

'* SID at paras. 18-52.

‘* We will refer to WNYC's nighttime operation as either nighttime operation or SSA operation. We

will use WNYC to refer to the licensee and to the AM station.

'** SID at paras. 77-86

A 43 91 F.C.C. 2d

640 Federal Communications Commission Reports

area, but does cause objectionable interference to the secondary (sky-

wave) service area.” Objectionable interference to WCCO’s operation

occurs in a crescent shapted area comprising the eastern portion of

WCCO’s secondary service area bounded by WCCO’s 0.5 mV/m 50%

skywave contour and inlcuding portions of Michigan, New York, Pennsyl-

vania, Ohio, West Virginia, Kentucky, Tennessee and Mississippi.

10. WCCO’s service area includes 21,589,889 people in 1,005,656 square

miles. Objectionable interference form WNYC'’s present 1 kW operation

now affects a total of 7,905,300 people in an area of 149,600 square miles in

WCCOs present secondary service area.” This area of interference in-

cludes a “white area” (no other primary” aural signals) encompassing

76,300 people in 5,200 sqaure miles and a “gray area” (only one other

primary aural signal) encompassing 244,300 people in 11,100 square miles.

WNYC’ proposed 50 kW operation would, because of directionalization,

result in a reduced amount of interference, affecting 7,158,600 people in

125,800 square miles, including a white area with 51,000 people in 1,800

square miles and a gray area with 195,100 people in 8,300 square miles. All

portions of the interference areas receive at least ten other secondary

services.

C. WNYC'’s programming: New York City’s special needs and

requirements—Issues 10 and 11.

ll. The ALJ found* that WNYC is a noncommercial public service-

oriented station serving as an adjunct to the New York City municipal

government. It is affiliated with and is a flagship of the National Public

Radio System.” Many government officials and distinguished New York

citizens attested to the extremely valuable public service rendered by

WNYC. Approximately 45% of WNYC’s schedule is devoted to news,

public affairs, and other informational programming, 35% to classical

music, and 20% to spoken word presentations, such as drama. WNYC

'§ An AM radio signal is propagated in two ways. During the day the “primary” or “groundwave” signal

travels horizontally across the earth's surface between the transmitter and receiver. At night a

second mode of propagation occurs as well. A “secondary” or “skywave” signal is reflected from the

atmospnere’s ionosphere and may be received hundreds or even thousands of miles away. Skywave

propagation makes AM suitable for the wide area nighttime service contemplated for the clear

channels. The skywave signal is protected from interference to its 0.5 mV’m 50% field intensity

contour, which is generally located 700-750 miles from the transmission point. Interfering signals

may not exceed 25 uV/m. See 1980 Clear Channei Decision, supra note 2; Section 73.182(v) of the

Rules.

” This figure excludes areas not served by WCCO because of interference from station WHAS,

Louisville, Kentucky.

2! Primary service refers to the area in which a station's ground wave is not subject to objectionable

interference or fading. Section 73.11(a) of the Rules.

SID at paras. 270-378.

The term flagship is used in the sense that WNYC is the principal regional affiliated station in the

New York Metropolitan Area, inicuding New Jersey and Connecticut, for the distribution and

dissemination of NPR programming. Tr. 3489-92.

8 ls

91 F.C.C. 2d

A 44,45

roe) et

Ni ps RL a ca LRN oigh t

City of New York Municipal B/cing 641

regularly preempts its scheduled programming to present programs of

particular public importance.

12. An extensive number of informational and cultural programs are

presented in whole or in part during SSA hours. The availability of SSA

hours provides time for WNYC’s “festival” or “block” programming, in

which large blocks of program time are devoted to a single subject. Some

festivals concerned new American composers, narcotics addiction, educa-

tion, Lawrence Olivier, Shakespeare, aging, and women. Subjects dealt

with in the festival format sometimes were incorporated into the regular

schedule.

13. Other informational programming is either presented during SSA

hours or could be scheduled only because SSA hours provided compensat-

ing time in the WNYC schedule. WNYC broadcasts live lectures from

Cooper Union during SSA hours and other lectures from local univer-

sities. Readings from leading magazine articles are presented for the

blind on “Magazine Spectrum.” Toward the goal of international under-

standing, WNYC broadcasts foreign press reports and hispanic program-

ming during SSA hours and also provides time for programs originating

abroad and programs about the United Nations. Other informational

programming concerned youth, education and health.

14. WNYC devotes considerable time, inlcuding some SSA time, to

programming on behalf of municipal and other government agencies.

These include consumer affairs agencies, the Veterans Administration,

agencies concerned with children and the handicapped, the police, public

health agencies and the city council. WNYC frequently preempts reg-

ularly scheduled programming to broadcast live public hearings before

municipal, state, and federal agencies, and meetings of the United Na-

tions. WNYC broadcasts news with a local emphasis and serves as a

direct link to the Mayor's office, government agencies, the police and fire

departments, and the weather service, during emergencies as weil as at

other times. These types of broadcasts are often aired during SSA hours.

15. Several types of programming require SSA hours to ensure access

to the public. Public meetings and government reports during emergen-

cies have already been alluded to. Other programs include election

coverage and spot announcements from public service and philanthropic

agencies. Without SSA time, WNYC could not conduct all of its extensive

interviews with local candidates or provide live election returns. The

number of groups having public access through WNYC spot announce-

ments wouid be curtailed without SSA time.

16. “Traveler’s Timetable,” broadcast during morning SSA hours with

the aid of extensive municipal resources, provides information about

traffic and public transportation to New York’s commuters.

17. WNYC also presents NPR programming and serves as an outlet for

programming by the Smithsonian Institution, the American Civil Liber-

91 F.C.C. 2d

A 46

642 Federal Communications Commission Reports

ties Union, and other groups. It uses SSA hours to broadcast an extensive

schedule of classical music programming.

18. the ALJ found that WNYC'’s pre-sunrise and post-sunset program-

ming served the special needs and requirements of its service area.” In

the ALJ’s view, WNYC’s preemption policy was unique and valuable, and

WNYC plays a unique role as the voice of the municipal government. He

found that, although other New York stations carry programming similar

to many of the types of programming on WNYC, no showing had been

made that this other programming measures up to WNYC'’s high stan-

dards. However, he acknowledged that a previous ALJ had erroneously

excluded evidence of alternative programming in New York. Although a

subsequent ALJ reversed that ruling and admitted exhibits by both

WNYC and WCCO, the present ALJ concluded that the absence of

thorough cross examination left the record somewhat deficient on this

point. The ALJ found that WNYC met the long term needs and require-

ments of New York City.

19. WCCO’s and the Broadcast Bureau’s Exceptions. While conceding

that WNYC’s programming is commendable, the other parties deny that

WNYC has demonstrated special need for its SSA operation. They assert

that other stations in New York City carry many programs similar to

those broadcast by WNYC. The Broadcast Bureau argues that WNYC’s

connection with the municipal government does not in itself establish

special need. Moreover, according to the Bureau, the SSA programming

could be carried by WNYC-FM.

20. WNYC's Reply. WNYC argues that it is contrary to the public

interest to eliminate such highly meritorious programming. WNYC also

submits that numerous witnesses testified to the special needs served by

the various categories of programming discussed in the Supplemental

Initial Decision. WN YC emphasizes that New York City’s unique size and

diversity creates extraordinary special needs. In WNYC’ view, its link

with the city government provides a special and unique service to the

people of New York. WNYC urges the that other stations carrying

programming similar to WN YC’s fail to match the quantity and quality of

its programming.

21. Analysis. WNYC has demonstrated that its programming is highly

meritorious and that curtailing such programming would be undesirable.

To this extent we agree with the ALJ. However, WNYC has not shown

that its SSA operation is necessary to serve special needs and require-

ments of its service area. The designated issue requires WNYC to show

more than that its programming is meritorious or that it serves communi-

ty needs for purposes of an ascertainment inquiry as it has done here.

* SID at paras. 379-86.

91 F.C.C. 2d

te a ee ees

City of New York Municipal B/cing 643

22. We previously explored the factors relevant to the question of

special needs and requirements in Jowa State University of Science and

Technology,” in which station WOI, Ames, Iowa, sought pre-sunrise

operating authority despite interference to Class J Station KFI, Los

Angeles, California. In denying WOI’s request, we determined that

WOI’s early morning programming (“Down on the Farm”) was not essen-

tial to satisfy the special needs and requirements of its service area. We

found that another station in WOI’s service area broadcast agricultural

market reports similar to those on “Down on the Farm.” Other portions of

“Down on the Farm” were deemed unnecessary to the farmer’s immediate

daily economic decisions and, therefore, could be broadcast iater in the

day. WOI programming presented classical music and religious program-

ming that was not duplicated during early morning hours. But, we

considered it significant that other forms of religious and musical pro-

gramming were available in the morning, and other classical music was

available later in the day. Thus, in Jowa State we determined that a

demonstration of special needs and requirements entails: first, that no

other station provides the service area with substantially similar pro-

gramming, and, second, that any unique programming would not be

effective if presented during the day by the applicant.

23. Applying this test to the record before us, we turn first to the

question of whether other stations in New York City provide program-

ming substantially similar to WNYC’. Initially we note that the record is

somewhat deficient in this regard, because, as the ALJ noted, a previous

ALJ improvidently restricted the introduction of evidence on this point.”

However, we are nevertheless able to draw meaningful conclusions based

on the existing record. At least some of WN YC’s programming appears to

be unique when compared with the description of other stations’ pro-

gramming submitted by WCCO.” No other station appears to present

anything comparable to WNYC'’s extensive coverage of public hearings,

United Nations affairs, and the foreign press. Apparently no other sta-

tion offers the equivalent of WN YC's festival format for intensive explora-

tion of public affairs and cultural subjects, and no other AM station in the

city carries National Public Radio programming. Moreover, in some

areas, such as programming concerning veterans, children, the handicap-

ped, and aging, WNYC seems to have provided programming of signifi-

cantly greater depth than that of the rest of the market. SSA hours are

used for at least some of these programs.

* 19 FCC 2d 36 (1969) (hereinafter /owa State).

* Tr. 3517-23. The two principal sources of evidence in the record are an assessment of other stations

by WNYC's Program Director (WNYC Exh. 72-6) and a survey by WCCO of programming listed in

other stations: renewal applications (WCCO Exhs. 72-30, 72-31).

27 WCCO Exhs. 72-30, 72-31.

91 F.C.C. 2d

644 Federal Communications Commission Reports

24. However, in a number of areas, other stations do provide at least a

rough equivalent of WN YC’s programming. A number of stations provide

traffic and mass transportation information as carried on “Traveler's

Timetable,” which occupies WNYC’s weekday morning SSA hours.”

WNYC's classical music and minority oriented programming is substan-

tially similar to that of New York City’s three other classical music

stations and six minority oriented stations.” Other New York City sta-

tions appear to provide significant amounts of programming concerning

consumer affairs, narcotics, health, nutrition, housing, art and theater

reviews, women, educational affairs, news, sports, election returns,

weather and public service announcements.

25. On balance, we find it most significant that other New York Metro-

politan area stations provide substantial amounts of information pro-

gramming, minority oriented programming, and classical music, supple-

menting that of WNYC. The fact that these stations may not provide the

breadth of WNYC’s programming or that in some narrow subcategories

other stations do not provide programming similar to WNYC’ is not as

significant. Moreover, the fact that with few exceptions, such as live

coverage of hearings, WNYC’s programming culd be broadcast during

the day and still benefit New Yorkers, strongly militates against a finding

that the SSA hours are necessary to serve the special needs and interests

of New York City. Additionally, as indicated below, we also find that

WNYC-FM can adequately substitute for any loss of service from

WNYC.

D. Use of WNYC-FM to satisfy needs—Issue 13.

26. The ALJ found that WNYC-F™M cannot be used as a substitute for

WNYC.” He noted that the FM program schedule is separate and

distinct from the AM schedule and that the FM station concentrated on

classical music (which is broadcast stereophonically), educational, and

cultural programming. The ALJ found that NPR funding is contingent on

separate programming. He also found that the AM and FM stations

sometimes preempted programming to carry public hearings or live

concerts.

27. The ALJ also found that technical obstacles existed to the reception

of WNYC-FM. Although the ALJ found that WNYC-FM’s 3.16 mV/m

% WCCO Exh. 72-30 at 74-76.

*® The record establishes that WQXR(AM/FM) and WNCN(FM) are classical music stations and

WVOX and WBAI(FM) carry substantial amounts of classical music. /d. at 24. WWRL(AM/FM)

and WLIB(AM/FM) are black-oriented and WJIT (formerly WHOM) and WADO are hispanic

oriented. /d. at 3.

*® SID at paras. 403-26.

91 F.C.C. 2d

oo Cente tee alana beer oe

City of New York Municipal B/cing 645

contour"covers nearly all of New York City and thus exceeded the size of

WNYC's AM nighttime service area, he believed that because of FM's

propagation characteristics, fewer people actually receive the FM signal.

The ALJ noted that the predicted FM field intensity values specified in

the rules are only approximations and, in any event, are predicted to be

met or exceeded only 50% of the time at 50% of the locations.” Based on

Arbitron statistics, the ALJ believed that as much as 62.4% of the

population could not receive the F'M signal because they did not own FM

receivers. In this regard, the ALJ found that in 1972 only 20.7% of

automobile radios could receive FM, and in the past listeners had pro-

tested when a band concert had been shifted from AM to FM.

28. WCCO’s and the Broadcast Bureau’s Exceptions. WCCO and the

Broadcast Bureau maintain that WNYC-F'M can be used as a substitute

for the AM. They argue that the Commission considers AM and FM a

single, technicaily.fungible aural service and that FM offers a more

reliable interference free service.* They further argue that, although at

present the AM and FM maintain largely separate program schedules,

programming could be interchanged if necessary. WCCO asserts that

during SSA operation % of WNYC’s programming is duplicated or sim-

ulcast on the FM station. It concludes that the loss of the entire SSA

schedule could be compensated for by using the FM station.

29. The parties also dispute the existence of technical barriers to

receiving FM. They assert that WNYC has advanced no reason to ques-

tion the broad coverage of New York City indicated by the extent of the

3.16 mV/m contour. Moreover, the Bureau submits that FM set penetra-

tion has enjoyed a steady increase in recent years. The Bureau proffers

figures indicating that in 1977, 56% of automobile receivers had FM

capability and that the figure for other receivers was even higher.*

3! Commission rules require an FM station to provide a minimum field intensity of 3.16 mV/m over the

entire principal community to be served. Section 73.315(a) of the Rules. Conversely, if a community

lies within an FM station's 3.16 mV/m contour, the community is considered adequately served. AM

Station Assignment Standards, 54 FCC 2d 1, 2 n. 1 (1975); Broadcasting Station Assignment

Standards, 39 FCC 2d 645, 674 (1973).

® See WSTE-TV, Inc.,33 FCC 2d 438, 449 n. 17 (Rev. Bd. 1972), rev. denied. 40 FCC 2d 773, recon.

denied, 42 FCC 2d 290 (1973), aff'd in part remanded in part, 566 F.2d 333 (D.C. Cir. 1977); Section

73.311 of the Rules.

Broadcast Station Assignment Standards, 19 FCC 2d 472, 475 (1969).

4 The Bureau's proffer consists of a report from the Consumer Electronics Group of the Electronic

Industries Association, submitted as an attachment to its Exceptions. The Bureau's request for

official notice of this report is granted. The report corroborates the recent growth of FM as a

broadcast medium to a point where it has attained competitive parity with AM. We relied on

evidence of the growth of FM as a viable competitive market force in Deregulation of Radio, (Notice

of Inquiry and Notice of Proposed Rulemaking) 44 Fed. Reg. 57636, 57646—47 (1979). The parties, of

course, may rebut this information by filing petitions for reconsideration. Compare Akron Tele-

rama, Inc., 1 RR 2d 196 (Adm. L.J. 1967).

91 F.C.C. 2d

A 50

646 Federal Communications Commission Reports

30. WNYC’s Reply. WNYC asserts that the other parties overstate the

degree to which the AM and FM programming can be interchanged.

WNYC urges that Commission declarations that AM and FM constitute a

single aural service were cited out of context and are inapposite. Accord-

ing the WNYC, the AM and FM stations are programmed, as a matter of

licensee discretion, for different audiences and that the listening public

would be inconvenienced if programming were interchanged. WNYC

asserts that present duplication of programming is confined to significant

events and therefore that such duplication does not indicate that further

interchange of programming would be appropriate. In fact it argues that

because the stereophonic capabilities of FM are ideally suited to cultural

programs, further duplication would be inappropriate. WNYC argues

that that alleged facts relied on by the Bureau to rebut the ALJ’s findings

about barriers to FM reception are not in evidence.

31. Analysis. Upon consideration, we disagree with the ALJ and find

that WNYC-FM is a suitable substitute for the AM station. Unlike the

ALJ, we see no basis for discounting WN YC-F M's broad coverage of New

York City on technical grounds. We now recognize F'M as a service equal

to AM with a signal of equal or superior technical quality.” We relied on

FM as a substitute for AM in Jowa State and reached a similar result in

denying pre-sunrise authority to station WHCU, Ithaca, New York.”

Moreover, we also relied on the growth of FM as a competitive market

force in Deregulation of Radic.” We see no reason here to discount the

significance of WN YC-F M's 3.16 mV/m contour as representing only an

approximation of a station's primary reception area. Our rules use the

contour for the purpose of determining the adequacy of a station's

coverage.” Thus, in the absence of evidence demonstrating that WN YC-

FM's reception is less than the 3.16 mV/m contour would indicate, we find

that WNYC-FM adequately serves New York City.”

32. We also disagree with the ALJ on the degree of FM set penetration.

Figures from the Electronic Industries Association” for 1979 indicate

that nearly 75% of all home radios (i.e., table, clock, and portable radios)

and more than 50% of all automobile radios are capable of receiving FM.

Recent Arbitron data“ shows that FM accounts for more than half of the

radio listening in New York City and that ten of the top twenty radio

stations in New York City are FM stations. Thus, many of WNYC's

* See cases cited supra notes 31-33. See also McCormick Communications, Inc. 68 FCC 24 SOT, 309

(1978).

* Presunrise Operation, 18 FCC 2d 705 (1969).

* Supra note 31

” See Moody Bible Institute of Chicago, 45 RR 2d 190 (1979).

* Electronic Industries Association, Electronic Market Data Book, pp 20-25 (1980). Official notice

taken. See note 14, supra

“ Cited in Duncan, Amencan Radio Fall 80 Report (1981). Official Notice taken. See note 34 supra

91 F.C.C. 2d

CL LE LI LE AALS —_ — are

City of New York Municipal B/cing 647

listeners have FM receivers and could receive WNYC’s SSA program-

ming without serious disruption, even if that programming were shifted

to WNYC-FM.@

33. Additionally, we do not agree with the significance the ALJ at-

tributed to the fact that the AM and FM stations are independently

programmed. Although it would be desirable for WNYC to have max-

imum flexibility in programming the two stations, the independent for-

mats do not make WN YC-F'M unavailable to compensate for loss of SSA

authority. Separate programming reflects licensee discretion, Commis-

sion nonduplication policy,“ and apparently NPR policy. There are no

technical or legal obstacles to shifting programming from WNYC to

WNYC-FM. Both stations are under the control of a common program

manager.“ Moreover, the record shows a significant amount of duplication

between the AM and FM schedules. Simulcasting accounts for about 20%

| of the broadcast schedule“ and substantial amounts of programming

originating on the FM station are later rebroadcast on the AM station and

vice versa.“ In total, simulcasting accounts for at least two hours a day of

WNYC’s schedule with other forms of duplication accounting for another

two hours.” Lessening of this duplication would mitigate the loss of SSA

authority. We also observe that the loss of SSA authority may be further

mitigated if WNYC replaced some of its classical music format with

informational programming. As previously noted, other New York sta-

tions have classical music formats,“ and the loss of entertainment pro-

gramming does not raise the same public interest considerations as the

loss of nonentertainment programming.”

E. Fair, efficient, and equitable distribution of radio service—Issue

. 15.

a NT til

34. In summing up the public interest considerations involved in the

preceeding issues, the ALJ concluded that considerations of fair, effi-

cient, and equitable service favored granting WNYC’s 50 kW nighttime

: proposal.” He concluded that the gains in service outweighed any loss of

service. Although the ALJ recognized that this case is similar to /owa

@ In reaching a similar conclusion in Presunrise Operation, supra note 3%, noted that the listeners of

WHCU were located in a relatively affluent community and would have sufficient advance warning to

acquire FM receivers if they did not own them. 18 FCC 2d at 732.

S#e Section 73.242 f the Rules.

“ WNYC Exh. "2-6 at 2.

@ WNYC Eas. 72-79. Prior to 1972 simulcasting was nearly 40%. WNYC Exh. 72-0.

“@ WNYC Exh. 72-74.

“ WNYC Exhs. 72-7, 72-74, 72-79, 72-80.

* Supra note 29.

” As previously noted, the 50 kW proposal causes less interference to WCCO and serves New York

City more efficiently then WNYC's present 1 kW operation.

91 F.C.C. 2d

648 Federal Communications Commission Reports

State, he fund that the cases are distinguishable. He believed it is signifi-

cant that WOI served a rural area in which good FM reception could be

assumed, while reception of WNYC-FM in New York City is uncertain.

Thus, the ALJ found that the lack of an FM station as an adequate

substitute for the AM proposal is a significant distinction between this

case and Jowa State. Moreover, the ALJ noted that Jowa State did not

involve a municipally owned station.

35. Analysis. As we have indicated in discussing the preceding issues,

we disagree with the ALJ's assessment of the factors in this case bearing

upon the fair, efficient, and equitable distribution of service. We acknow!l-

edge that WNYC'’s programming is highly meritorious and that termina-

tion of its nighttime operation, especially during the winter, when SSA

hours occupy a larger portion of the broadcast schedule, would represent

a significant loss to New York City. However, we must also take into

consideration that nighttime operation by WNYC interferes with a sub-

stantial portion of the clear channel service provided by WCCO. Al-

though we recently relaxed the protection accorded clear channel stations

to some extent in the 1980 Clear Channel Decision,™we nevertheless

have reaffirmed the importance of clear channel broadcasting by preserv-

ing the rules protecting clear channel stations from interference within

their 0.5 mV/m 50% contours such as WNYC would impose on WCCO.

36. In view of the foregoing, we find it dispositive that WNYC'’s night-

time services is not essential to serve special needs and requirements as

we have defined those terms in Jowa State. Other New York City stations

provide substantial amounts of programming of the same general type, if

not breadth and intensiveness as WNYC’s. Most of WNYC's SSA pro-

gramming would be equally effective if presented during daylight hours.

Moreover, WNYC-F™M is available to reschedule especially important

programming at night.

37. It is also significant that New York City, although a uniquely large

and diverse metropolis, has an exceptionally large complement of both

commercial and noncommercial stations including WNYC-FM. By con-

trast the interference areas, including white and gray areas, are less well

served. In addition, roughly equal numbers of people stand to gain or lose

service depending on the resolution of this proceeding. All told, we

conlcude that the limited AM operation as supplemented by the FM

operation should be sufficient to meet the realistic special needs of New

York City and that WNYC has not met the heavy burden of justifying a

waiver of the fundamental allocation policy involved here.* Accordingly,

we will deny WN YC’s applications for nighttime 50 kw and 1 kw operating

authority.

" Supra note 2.

™ See WAIT Radio v. FCC, 459 F.2d 1203 (D.C. Cir. 1972).

91 F.C.C. 2d

City of New York Municipal B/cing 649

III. WCCO’s Proposed Tall Tower

A. Air hazard—Issue 14.”

38. WCCO seeks to move its antenna to Hamel, Minnesota, and to

increase the antenna’s height to 1195 feet above grouhd level (2195 feet

above mean sea level). Because the proposed antenna is higher than 500

feet above ground level, the FAA conducted a study to determine

whether the structure would be an air hazard.“ The FAA found that the

proposed antenna affected flight procedures in connection with Min-

neapolis-St. Paul International Airport, the city’s major airport, 19 miles

from Hamel, and seven satellite airports, serving mainly small aircraft.

The FAA identified seven specific instrument assisted navigational pro-

cedures whose minimum altitudes would have to be increased by between

400 to 700 feet. In one instance, the direction of approach to an airport

would also be affected. The FAA found that Victor 148, a flight path

traversed by aircraft on their approach to the Minneapolis-St. Paul area

airports would be adversely affected in certain instrument assisted navi-

gational procedures. According to the FAA, WCCO’s proposed tower

would require aircraft using Victor 148 to observe a 400 foot higher

minimum enroute altitute, eliminating in the process a “cardinal

altitude.”

39. The FAA also found that WCCO’s proposed tall tower would be

located approximately one mile from State Highway 55 and a railroad

track, used as landmarks by pilots navigating without the aid of instru-

ments. In view of: (1) the heavy air traffic in the Minneapolis-St. Paul

area,” and extensive student pilot training in the area; (2) the complexity

of the procedural modifications necessitated in instrument landing pro-

cedures; and (3) the location of the proposed tower in an area otherwise

free of obstructions; the FAA concluded that the tower was an air hazard

with respect to both visual and instrument aircraft operations.”

40. WCCO’s chief witness, Captain Paul A. Soderlind,™ testified that

significant changes in Minneapolis-St. Paul area flight procedures, occur-

® SID at para. 427-566. See also NBAA Exh. 41, the report of the FAA regionat office.

* In an aeronautical study the presumption is that a structure will have an adverse effect on

instrument operations if the structure requires any changes in procedures or minimum flight

altitudes. There is also a presumption that a structure will have an adverse effect on visual flight

operations if as a result of its construction, any flight would be required to change course or altitude.

* The minimum enroute altitude along Victor 148 would be increased from 2300 feet to 3200 feet. Thus,

the 3000 foot “cardinal altitude,” (i.¢., altitudes spaced at 1,000 foot intervals for separation of

aircraft) would no longer be available to aircraft using Victor 148.

* The traffic exceeds one million aeronautical operations a year in the Minneapolis-St. Paul area,

including more than 50 operations a day on Victor 148.

* The Director of Air Traffic Services for the FAA affirmed the aeronautical study described above,

which was prepared by a regional office. WCCO did not pursue an appeal.

* Soderlind is a former airline pilot with 40 years of flying experience and a consultant to a number of

organizations including Boeing Aircraft and the FAA. His testimony is contained in WCCO Exh.

72-43.

91 F.C.C. 2d

A 54

——————————————

650 Federal Comm..nications Commission Reports

ring after the FAA determination, undermined the FAA's rulings; and he

otherwise attempted to minimize the significance of the adverse affects

found by the FAA. Soderlind noted that in 1974, after the FAA rendered

its decision, a terminal control area, which would be unaffected by the

proposed tower, was established for Minneapolis-St. Paul International

Airport. Moreover, under the FAA’s “Keepem-High” program, large

aircraft are kept substantially above the altitude floor for the terminal

control area. Soderlind also dismissed the significance of the increase in

minimum enroute altitude for Victor 148, which the FAA had, following

its decision, increased to 3000 feet. According to Soderlind, the pertinent

segment of Victor 148 is now little used, a 200 foot increase in minimum

altitude from 3000 to 3200 feet is insignificant, irrespective of the loss of a

cardinal altutude, and the existing minimum approach altitude could be

maintained by a minor realignment of Victor 148. Similarly, Soderlind

minimized themodifications of the various instrument navigational pro-

cedures noted by the FAA. Soderlind considered these of little opera-

tional significance. Soderlind believes that pilot training areas could be

relocated.

41. Soderlind also minimized the impact of the proposed tower on visual

procedures. He testified that a well lighted tower—in this case strobe

lighted—could easily be sighted and avoided even under conditions of

poor visibility. He believed that a prudent pilot would be familiar with the

tower's location and even those using visual rules would use instruments

to maintain a safe distance from the tower. In Soderlind’s opinion, pilots

would not use Route 55 as a navigational aid under poor weather condi-

tions and that, in any event, the proposed tower was sufficiently far from

Route 55 to prevent collisions. He also believed that the antenna’s radio

signal and strobe lighting would be useful navigational aids and that the

proposed tower was less of a hazard than WCCO’s existing tower.

42. Six pilots testified for the National Business Aircraft Association

(NBAASQ and the Aircraft Owners and Pilots Association (AOPA). Jerrol

T. Frederickson, an experienced airline pilot, agreed with Soderlind that

the new antenna site will have little impact on airline operations except

that the increase in minimum altitude used in various procedures may

possibly result in slower traffic.” However, he reported that FAA em-

ployees at Minneapolis—St. Paul International Airport expressed con-

cern that radiation from the WCCO tower could affect their instrument

landing system and he favored use of an antenna farm.”

43. Other pilots” testified that flights involving general aviation air-

craft, in contrast to those of the airlines, would be adversely affected Ly

* Tr. 10675~76.

*! John Boynton Bean, an expert in aircraft used by businesses; Curtis O. Ericson, a flight school and

air taxi operator; Wallace C. Goodrich, an expert aerial navigation and obstruction evaluator; Lee

John Gilligan, a flying school operator; and William S. Sadler, a private pilot and aviation equipment

company executive. See Tr. 8403-9793.

91 F.C.C. 2d

City of New York Municipal B/cing 651

the proposed tower. These witnesses testified that smaller aircraft, which

are not required to use the terminal control area, often fly over the

proposed site at low altitudes in order to avoid the terminal control area in

which larger aircraft must operate.” The tower would force other small

aircraft into the terminal control area where the larger clumsier aircraft

operate, causing increased congestion. These witnesses also testified that

the loss of the 3000 foot cardinal altitude for Victor 148 and vicinity would

be significant because aircraft would be forced to use higher altitudes

including the higher minimum 5000 foot cardinal altitude.™ In the wit-

nesses opinion, use of the higher altitudes by small aircraft creates a

significant hazard because of stresses of a more rapid descent™ and the

possibility of icing conditions. The witnesses also testified that the tower

would pose a particular hazard to those aircraft navigating visually.® The

witnesses felt that small aircraft would not use the tower as a navigational

aid but would prefer to use Route 55 which passes near the tower.® They

further believed that even with strobe lighting, visibility would be poor in

some weather conditions.” The witnesses testified that small aircraft

frequently do not possess instruments and that when they have instru-

ments, the instruments may malfunction periodically.“ The witnesses

agreed that the tower would impose a particular burden on flight schools,

which would have to undergo costly relocation or lose the opportunity for

low altitude training in the vicinity of the tower.”

44. Other Witnesses. Three air traffic or obstruction specialists testified

about the WCCO tower.” WCCO’s witnesses testified that the changes in

instrument procedures would not be significant,” that the tower would be

highly visible, and that the visibility would be iraproved by the strobe

lighting.” WCCO’s witnesses observed the site and concluded that air

traffic over it was light and the tower would not increase controller

workload.” One WCCO witnessed testified that flight training could

®@ Tr. 9732.

@ East-West flights are assigned to operate at even cardinal altitudes, such as 4000 or 6000 feet. West-

East flights are assigned to the odd altitudes. Thus with the loss of the 3000 foot cardinal altitude the

minimum West-East altitude would be 5000 feet (Tr. 7590, 8598). Moreover. air traffic utilizing visual

flight rules use cardina! altitudes plus 500 feet, and East-bound visual traffic would be forced to 5500

feet (Tr. 9110).

* Tr. 9793.

® Tr. 8611, 8632, 8811.

*® Tr 8529.

* Tr. 8580, 9839.

* Tr. 9208, 9220.

” Evans W. North, a former FAA official and pilot; and James E. Grambert, a former pilot and air

traffic controiler, testified for WCCO. Francis M. McDermott, an aeronautical consultant, testified

for NBAA.

™ WCCO Exh. 72-46; Tr. 11239.

™ WCCO Exh. 72-46; Tr. 11270.

™ Tr. 7483, 7824, 11240.

91 F.C.C. 2d

652 Federal Communications Commission Reports

easily be moved to a new location where the tower would not be a

problem.” The NBAA witness testified that the tower would require

significant changes in procedures for small craft and that the increase in

altitude would be a burden on traffic controllers.” He also testified that

small aircraft would be forced to obtain sophisticated navigational equip-

ment or abandon the area. ® He considered traffic to be heavier in the area

than did the WCCO witnesses and cited a collision in Washington, D.C. as

an example of the hazard posed by WCCO’s proposed tower.”

45. The ALJ concluded™ that WCCO’s proposed tall tower represented

an unreasonable menace to aviation. The ALJ found that WCCO had not

demonstrated its authority to use strobe lighting, which it proposed after

the FAA determination had been made. He found that WCCO’s land use

permit from the city of Medina prohibited strobe lighting unless required

by the FCC and that the FCC will not require strobe without an FAA

recommendation in this regard.” In view of WCCO’s heavy reliance on

strobe lighting to establish the safety of the tower with respect to low

altitude visual flights, he concluded the tower proposal would have to be

rejected. However, the ALJ also concluded that even if strobe lighting

were available, the proposed tower would be unacceptable. He found that

the record conclusively established that the proposed tower would neces-

sitate significant changes in aeronautical procedures. Although these

changes would not have a significant impact on large aircraft used by the

airlines, the impact on small aircraft would be substantial, and flight

schools would be required to relocate their training areas. In this regard,

despite a conflict in the testimony, the ALJ found that there is substantial

use of both Victor 148 as an airway and State Highway 35 as a navigational

guide. In view of the testimony by the witnesses representing small

aircraft and flying schoois, che ALJ believed that the hazard posed by the

proposed tower could not be regarded as reasonable.

46. The ALJ found that there is no clear precedent for overruling an

FAA air hazard determination. He noted that in Streets Electronics,

Inc.,” the Commission disagreed with a hazard determination by a

Regional Airspace Committee.” Streets Electronics, however, is dis-

tinguishable from the instant proceeding because the proposed tower did

not require modification of any established air flight procedures.* The

Ty. 11448-11471.

> Tr. 9095-97.

™ Tr. 9127.

7 Tr. 10595-98. In January 1975 an airplane struck the radio tower at American University

™ SID at paras. 531-66.

” Citing Antenna Structures, 54 FCC 2d 30 (1975).

” 20 FCC 1121 (1956).

* The Regional Airspace Committees were federal interagency groups, established by Executive

Order, which made advisory air safety determinations prior tc the estabiishment of the FAA

@ 20 FCC at 1167-68

91 F.C.C. 2d

City of New York Municipal B/cing 653

Commission found no basis for finding the tower would be an air hazard.

In Beacon Broadcasting System,” a hearing examiner overturned a

hazard determination by a Regional Airspace Committee. The ALJ dis-

tinguished Beacon because the only airport in the vicinity was a private

airport with three dirt runways that is “not within a civil airway or

designated air traffic control area.” In Beacon the examiner was also able

to find that the tower would not require the modification of any flight

procedures or affect the approach or departures from the airport. In

WLCY-TV,™ the Commission upheld an FAA no hazard determination

stating while it would independently review air hazard issues, it relies

heavily on the FAA's expertise. Thus, citing WLCY-TV as precedent for

relying on the FAA determination, and the testimony of the witnesses

supporting that determination who were considered at least as credible as

those opposing it, the ALJ concluded that “there is a reasonable pos-

sibility, if not certainty, that the tower proposed by WCCO would con-

stitute a menace to air navigation.,”™

47. WCCO’s Exceptions. WCCO contends that the FAA's hazard deter-

mination is of little significance since it was made by its Regional Office

and has never been approved by the Administrator of the FAA. It argues

that the FAA failed to find any specific adverse effect on safety when it

found WCCO’s proposed tower would be a hazard to aeronautical naviga-

tion. It asserts that the FAA uses the term “hazard” as a “term of art”

dealing with the convenient and effective utilization of the air space as

opposed to a synonym for the word “menace.” The determination was also

made without hearing or other due process and WCCO contends that it

can only be sustained by the Commission if it is found by the Commission

to be supported by record evidence.” WCCO argues that the Commission

must make a de novo determination. Moreover, the hazard determination

preceded the establishment of the terminal control plan for the Min-

neapolis-St. Paul International Airport and the “Keep-’em High” pro-

gram, and as a result, WCCO maintains it may no longer have validity.

WCCO concludes that most craft now would clear the tower by at least

1700 feet and the increase in minimum altitude will not affect any aircraft

that is subject to the terminal control area floor.” Citing the testimony of

its expert witnesses, WCCO concludes that the record supports a rever-

sal of the hazard determination.

48. The State of Minnesota’s Exceptions. Minnesota argues that the

ALJ erred in his resolution of the air safety issue. It assures that the

evidence establishes a high degree of good visibility flying weather; that

34 FCC 872 (Adm. L.J. 1963).

* 38 FCC 2d 86 (1972).

® SID at para. 566.

* Lincoln Operating Company, 43 FCC 542 (1951).

* WCCO Exh. 72-43. para. 16, App. A, B, D.

91 F.C.C. 2d

A 58

eee

654 Federal Communications Commission Reports

the tower is readily visible; and that pilots flying visually should have no

problems avoiding the tower. Minnesota agrees that the tower will cause

some inconvenience to the owners of small aircraft, but contends that the

inconvenience must be secondary to the needs for improved service, and

the enhancement of ground safety from a wider area reception of WCCO’s

weather forecasts.

49. NBAA’s and AOPA’s pleadings. NBAA and AOPA contend that

there is no legal basis for overturning the FAA hazard determination

since the FAA regional hazard determination was appealed by WCCO

and affirmed by the Director of Air Traffic Se.’vices for the Administrator

of the FAA.* They argue that orders of the Administrator are subject to

review in the Court of Appeals,” and that hazard determinations are final

agency actions subject to judicial review.” Thus, since WCCO did not

seek review, they conclude that the determination is a final agency order

which can only be reversed by court appeal. In any event, they contend

that it is Commission policy to place heavy reliance on an FAA hazard

determination,” that the determination is supported by the record, and

that even if approved by the Commission, the tower must still be approved

by the FAA. Responding to the pleading of the State of Minnesota, AOPA

asserts that there are many general aviation pilots who will be adversely

affected by the tower, and that there is no evidence that the tower will

result in an improvement in ground safety sufficient to offset the air

hazard caused by the tower.

50. Analysis. The FAA is required to consult with and make rec-

ommendations to the FCC in order to minimize the hazards to air traffic

from broadcast stations.“ Concomitantly, the Commission’s Rules

provide that “Whenever a report is received from the FAA indicating that

a proposed antenna structure is a hazard, the Commission will take

further appropriate action.”™ In exercising its responsibilities under Sec-

tion 309 of the Communications Act to find that a grant would serve the

public interest, convenience ana necessity, the Commission must consid-

er all relevant matters including the height and location of proposed

antenna structures. The Commission cannot delegate its Section 309

responsibilities, although an FAA determination or air safety issues is

given deference where appropriate.“ Thus, while the Commission usu-

® NBAA Exh. 59.

™® 49 U.S.C. 1486.

® Airline Pilots and Owners Associationp..NY.CIFAA, 600 F.2d 966 (D.C. Cir. 1979

" WLCY-TV, 38 FCC 2d 86 (1972).

® 49 U.S.C. § 1712(d).

% Section 17.4(e) of the Commission's Rules. Commenting on Section 17.4(e), the Commission said it

considers “the FAA report, as well as other public-interest factors, and, uniess the matter is

resolved through informal procedures” it will be designated for hearing. Antenna Farm Areas, 8

FCC 2d 559, 560 (1967).

* Airplane Owner and Pilots Association v. FAA, 600 F.2d 965, 973-74 (D.C. Cir. 1979).

91 F.C.C. 2d

A 59

so eo

City of New York Municipal B/cing 655

ally follows FAA recommendations, we can overturn a determination or

make a finding of non-hazard if we find that a tower will not unreasonably

menace air traffic or require the modification of navigational procedures. *

51. We have conducted a de novo hearing on the air hazard issue and

given full consideration to the FAA’ air hazard determination. In view of

the record evidence of the adverse effects which the proposed tower

would have on aviation, WCCO carried a heavy burden to establishing

that the tower would not be an air hazard.* Thus, in WHAS, inc.,” the

Commission was not persuaded that a tower would not be an air hazard

even though instrument procedures could be modified to remove any

likelihood of collision, and the tower would be well lighted. The Commis-

sion was concerned about the reduction in airspace caused by the tower

which increased the likelihood of collision, and the proximity of the tower

to an area used for student pilot training. Here a finding of no hazard is

precluded by credible testimony establishing a strong likelihood that

WCCO's tower will have an adverse affect on air navigation.

52. Although WCCO has presented credible testimony in support of its

position, it is amply rebutted by the testimony of witnesses opposing the

tall tower. In particular they testified that smallplanes navigating visually

along Route 55 would be required to fly within relatively close proximity

to the tower, and that even with stobe lighting the tower may not be

visible under all circumstances. We cannot conclude that the loss of

minimum altitudes established by the FAA area are of no significance,

especially in light of expert testimony on the undesirability of rapid

descent and the danger of icing. Moreover, we are persuaded by the

testimony that the establishment of the terminal control area tends to

compress small aircraft traffic beneath and around the terminal control

area into the vicinity of the tower, and would lead to the undesirable

mixing of small and large aircraft within the terminal control area.

Finally, the record establishes that the tower would adversely effect

training flights in the area. Under these circumstances, we will deny

WCCO’ application for modification of its facilities because the proposed

tower constitutes an unacceptable air hazard.

IV. Miscellaneous Issues

A. Cowles Condition.

53. In redesignating this case for hearing, the Commission noted that

WCCO was among the holdings of the Cowles-Ridder broadcasting and

* WLCY-TV, supra; Streets Electronics, Inc., supra; see also, Antenna Structures, 54 FCC 2d 30

(i875) and Antenna Farm, Amarillo, Texas, 20 FCC 2d 119 (1969).

* The designation order placed the burden of proof on WCCO. 33 FCC 2d at 290. See also, WLCY,

supra at 90-91; WHAS, Inc. 31 FCC 237, 274 (1961).

” 31 FCC at 274.

91 F.C.C. 2d

A 60

656 Federal Communications Commission Reports

publishing interests and that the qualifications of a related corporation,

Cowles Broadcasting, Inc., (Cowles) to be a Commission licensee were at

issue in Docket No. 19168.“ Anticipating that the findings in Docket No.

19168 might reflect adversely on WCCO’s qualifications, the Commission

conditioned any grant to WCCO on the outcome of that proceeding. The

ALJ citing the Commission's findings in Cowles Florida Broadcasting,

inc.” found no issue was raised which would reflect on WCCO's qualifica-

tions and deleted the issue.” However, subsequentiy, in Central Florida

Enterprises v. FCC," the Court vacated and remanded the proceeding in

Docket No. 19168, and the Bureau in its exceptions argued that the

Cowles condition should be reinstated.

54. In the remanded consideration of the issues raised in Docket No.

19168 the Commission again found that misconduct by Cowles-Ridder

nonbroadcasting subsidiaries did not reflect on Cowles’ basic qualifica-

tions to be a licensee.” Thus, no issue is raised which would reflect on

WCCO’ qualifications and we will deny the Bureau's request to reinstate

the Cowles condition.

B. WCCO’s Petition for Order to Show Cause.

55. WCCO petitions for an order to compel WNYC to show cause why it

should not accept a grant of an unlimited time station on 820 kHz. WNYC,

at WCCO’s behest, filed an application for 820 kHz when that frequency

became available under the 1980 Clear Channel Decision. The petition is

opposed by WNYC, the Bureau, and the Ohio State University which has

filed a potentially mutually exclusive (with WNYC) application for new

facilities on 820 kHz. WNYC’s 820 kHz application is not part of this

proceeding; there are at least 10 applications pending for new or modified

facilities on 820 kHz which could be prejudiced by a grant to WNYC on

that frequency; and WNYC’s 820 kHz application cannot be granted

without further processing. Thus, we will deny WCCO’s Petition for

Order to Show Cause.

56. ACCORDINGLY, IT IS ORDERED, That the Exceptions filed

July 9, 1979, by the State of Minnesota, and July 10, 1979, by Midwest

Radio-Television, Inc. (as predecessor of WCCO RAdio, Inc.), by the City

of New York Municipal Broadcasting System, by the Chief, Broadcast

Bureau, by the Aircraft Owners and Pilots Association, and by the

National Business Aircraft Association, ARE GRANTED to the extent

indicated herein and in all other respects ARE DENIED.

% 33 FCC 2d at 288-89. Docket No. 19168 involves Cowles’ application for renewal of station WESH-

TV, Dayton Beach, Florida.

® 60 FCC 2d 372 (1976), recons. denied, 62 FCC 2d 953 (1977).

0 SID at para. 662.

101 598 F.2d 37 (D.C. Cir. 1978), cert. dismissed, 441 U.S. 957 (1979).

02 86 FCC 2d 993 (1981), affirmed sub nom. Central Florida Enterprises, Inc. v. FCC, No. 81-1795

(D.C. Cir. July 13, 1982).

91 F.C.C. 2d

A 6l

City of New York Municipal B/cing 657

57. IT IS FURTHER ORDERED, That the application of the City of

New York Municipal Broadcasting System for an extension of SSA au-

thority and for a construction permit (File Nos. BSSA-266 and BP-16148)

ARE DENIED.

58. IT IS FURTHER ORDERED, That the Application of WCCO

Radio, Inc. for a construction permit (File No. BP-19151) IS DENIED.

59. IT IS FURTHER ORDERED, That the Petition for Order to Show

Cause, filed April 10, 1981, by WCCO Radio, Inc. IS DENIED.

60. IT IS FURTHER ORDERED, That the Motion to Strike, filed

May 7, 1981, by City of New York Municipal Broadcasting System IS

DISMISSED as moot.

61. IT IS FURTHER ORDERED, That the City of New York munici-

pal Broadcasting System IS AUTHORIZED, to continue operation

broadcast station WNYC-AM under the existing temporary Special

Service Authorization until 10:00 P.M., on the 91st day after the release of

this Decision, PROVIDED, however, that if the licensee seeks judicial

review of this Decision, IT IS AUTHORIZED to continue to operate the

station pursuant to its Special Service Authorization until 90 days after

judicial review is completed. Judicial review is completed when the forum

which has jurisdiction to review this proceeding issues its mandate ex-

cept, in a case when the mandate issues prior to the expiration of the

period for seeking Supreme Court review and we are advised by the

licensee that he intends to seek Supreme Court review, judicial review

will not be completed until the Supreme Court denies the petition for

certiorari or issues a ruling on the merits affirming the denial of of the

instant applications, whichever occurs later.

FEDERAL COMMUNICATIONS COMMISSION

William J. Tricarico Secretary

September 23, 1982

STATEMENT OF

FCC COMMISSIONER JAMES H. QUELLO

DISSENTING IN PART

IN RE: THE CITY OF NEW YORK MUNICiPAL BROADCASTING SYSTEM

AM RADIO PROCEEDING

I must dissent to that part of the Commission's decision which denies

nighttime operating authority to public broadcast station WN YC—end-

ing almost 40 years of nighttime noncommercial service. I am convinced

that the Administrative Law Judge correctly determined that WNYC's

91 F.C.C. 2d

—————LLwmwmwrt”t~—

658 Federal Communications Commission Reports

nighttime operation has uniquely served the special needs and interest of

its audience, and thus, I believe that this service should be permitted to

continue.

This is a case where the Commission must exercise its responsibility to

choose between conflicting valuable services. The majority recognizes

that WNYC’s programming is meritorious, but chooses to adhere strictly

to its general technical standards. In my view, ample cause has been

shown to retain all of WNYC’s unique public-service oriented program-

ming. In weighing these issues, I consider it particulary relevant that

WNYC’ nighttime operation causes no interference to the primary serv-

ice area of station WCCO and that each area which might receive addi-

tional secondary service from WCCO is located within the secondary

service area of at least 10 other clear channel stations.

As a final matter, I believe that the majority has erroneousiy relied on

the fact that the meritorious programming of station WNYC the-

oretically could be shifted to co-owned staton WNYC-FM, a fulltime

station. In fact, it is also possible that some other station in the market

will take the opportunity to present any programming lost by cessation of

WNYC’s nighttime operations. The relevant question, however, is

whether this meritorious programming will, in fact, be shifted to another

station or whether it will instead be discontinued. The majority opinion

implies an obligation on the part of WN YC'’s licensee to use any facility at

its disposal to disseminate this valuable information. No such obligation

exists, and there may be sound reasons why the licensee will choose to

continue the present format of its FM facility. Should this occur, it isthe

Commission, and not the licensee, which has denied the citizens of New

York access to unique programming which cleary served their special

needs and interests.

91 F.C.C. 2d

A 64

-Doeket Nos, 11227-17588-19403

In Re Applications of

CITY OF NEW YORK MUNICIPAL BROAD-

CASTING SYSTEM (WNYC) New York, New York,

Appellant,

For Special Service Authorization

CITY OF NEW YORK MUNICIPAL BROAD-

CASTING SYSTEM (WNYC) New York, New York,

Appellant,

wCCO RADIO, INC. (WCCO) Minneapolis,

Minnesota,

Intervenor.

For Construction Permits

MEMORANDUM OPINION AND ORDER

Adopted: May 12, 1983 ; Released: May 19, 1983

By the Commission: Commissioner Quello dissent-

ing in part and issuing a statement.

Rs Radio WCCO, Inec., (WCCO) is the

licensee of Class I-A clear channel station WCCO,

830 kHz, Minneapolis, Minnesota. In a Decision, 91

FCC 2d 635, released October 4, 1982, the

A 65

Commission denied applications filed by the City of

New York Municipal Broadcasting System (WNYC)

for limited nighttime authority on 830 kHz because

of prohibitive interference to WCCO, The Decision

also denied WCCO's application for a construction

permit to build a new antenna tower, finding that

the tower would be an unacceptable hazard to air

navigation, Now before the Commission are

Petitions for Reconsideration, filed November

2,1982, by WNYC, l/ and November 3, 1982, by

WCCO, 2/

2. WNYC's applications for limited

nighttime authority were denied because it failed to

establish that its operation was essential to satisfy

"special needs and requirements" 3/ of its service

area sufficient to justify operation with prohibited

interference to WCCO in contravention of the

Commission's Rules, The Commission relied on the

availability of WNYC-FM as an alternative source

of programming, and the plethora of other stations

in WNYC's service area, including some which

provide substantial amounts of programming similar

to that provided by WNYC,

3. WNYC argues that the Final Acts of the

Regional Administrative Broadcasting Conference

—————— LL LLL —es—™—

(Region 2) Rio de Janeiro, December 19, 1981 (Final

Acts), permits interference to WCCO's secondary

service area by Venezuelan station YVLT which

substantially duplicates the interference from

WNYC's proposed nighttime operation, Under the

Final Acts, WCCO receives no protection from

nighttime interference by YVLT's .025 mV/m 10%

skywave contour. 4/ WNYC's nighttime proposal

was deemed unacceptable because the more

restrictive domestic standards protect WCCO from

WNYC's 10% skywave contour. According to WNYC,

this discrepancy between foreign and domestic

standards allows YVLT to impose interference on

89% of the area and 90% of the population that

would be affected by interference from WNYC,

WNYC asserts that the interference found

Objectionable by the Commission’ essentially

duplicates that already imposed by YVLT, creating

no further significant impairment to WCCO's

service.

4. WNYC's arguments concerning the

interference from YVLT are procedurally defective.

Under Section 1.106(c) of the Commission's Rules,

WNYC's arguments can be considered only if the

underlying facts occurred subsequent to the close of

the record; could not have been previously

ascertained and raised in a timely manner; or must

be considered in the public interest. 5/ if

consideration of WNYC'’s arguments would also

require reopening the record, WNYC must also

establish that the evidence to be adduced will affect

the ultimate decision. 6/

5. Contrary to WNYC's contention, the

interference from YVLT cannot be treated as newly

discovered evidence. Although the Final Acts were

not adopted until 1981, the accords dealt with pre-

existing interference. The Bureau asserts that

Station YVLT has been utilizing 830 kHz with 50 kW

power, nondirectional, since 1974. WNYC has not

demonstrated that the issue of interference from

YVLT could not have been raised at the hearing.

Moreover, we find that the evidence concerning the

interference to WCCO need not be considered

because it would not be of decisional significance.

The policy of the Commission and the United States

is to protect the transmissions of clear channel

stations, such as WCCO, to the 10% contours of

cochannel stations, and there is nothing in the Final

Acts which would preclude further negotiations to

bring YVLT into compliance with the more stringent

United States standards, We will take no action

here which could undermine future efforts to secure

such protection for WCCO from YVLT. We are also

not satisfied that the additional interference to

WCCO from WNYC is de minimis because of the

A 68

existing operation of YVLT. WNYC conceded that

approximately 710,000 people in an area of about

13,758 square miles would be subject to inteference

from its proposed operations, but not from YVLT's

operations. Moreover, due to the nature of skywave

transmissions and the location of the stations, the

signals of WNYC and YVLT will often interfere with

wCCO's protected signal at different times and in

different places. 7/ We also note that WNYC's

signal, when combined with the signal from YVLT,

substantially increases the interference with

WCCO's groundwave and protected skywave service

contours, Without attempting to further quantify

these factors, we find that any adverse impact on

WCCO's signal from YVLT would be aggravated by

the interference from WNYC, and that the

continued broadcast of WNYC's nighttime signals

would result in significant degradation of WCCO's

service. We thus conclude that the interference

from YVLT does not undermine the basis of our

Decision or relieve WNYC of its obligation to

establish that it serves special needs and

requirements sufficient to justify the interference

to WCCO's clear channel operations. 8/

6. WNYC's remaining arguments concern

the quality of its programming and the adverse

impact on the public from the denial of applications.

WCCO's Petition is concerned with the

Commission's evaluation of the evidence adduced

under the air hazard issues, These other matters

raised by WNYC and WCCO were fully considered

and resolved in the Commission's Decision, and are

entitled to no further consideration here, It is well

established that the Commission will not grant

reconsideration merely for the purpose of again

debating matters on which the Commission has once

deliberated and spoken, 9/

7. ACCORDINGLY, IT IS ORDERED, That

the Petitions for Reconsideration filed

November 2, 1982, by the City of New York

) Municipal Broadcasting System, and November

3 1982, by Radio WCCO, Inc., ARE DENIED,

8. IT IS FURTHER ORDERED, That the

Petition for Leave to File Response, and the

Response, both filed December 14, 1982, by Radio

wCCoO, Inc., ARE DISMISSED as moot,

FEDERAL COMMUNICATIONS COMMISSION *

William J, Tricarico

Secretary

*See attachment statement of FCC Commission

James H. Quello dissenting in part.

A 71

Statement of FCC Commissioner James H. Quello

Dissenting in Part

In Re: Petitions for Reconsideration in the City

of New York Municipal Broadcasting

System AM Radio Proceeding

I continue to dissent to that part of the

Commission's decision which denied nighttime

operating authority to public prodcasting station

WNYC, See City of New York Municipal

Broadcasting, 91 FCC 2d 635, 657 (1982) (dissenting

opinion).

(Footnotes)

1/ Pleadings relating to WNYC's Petition for

Reconsideration are: (a) Oppositions filed November

17, 1982, by the Mass Media Bureau and by WCCO;

(b) an Erratum filed December 6, 1982, by WCCO;

(ec) a Reply filed November 30, 1982, by WNYC; (d)

Comments filed December 16, 1982, by WNYC; and

(e) a Petition for Leave to File Response, and a

Response, filed December 14, 1982, by WCCO. In

view of our determination herein, the Petition for

Leave to File Response, and the Response, both

filed by WCCO will be dismissed as moot.

2/ Pleadings relating to WCOO's Petition for

Reconsideration are.Oppositions filed: November 12,

1982 by Aircraft Owners and Pilots Association;

November 15, 1982, by WNYC; November 17, 1982,

by the Mass Media Bureau; and December 3, 1982,

by National Business Aircraft Association.

3/ lowa State University of Science and

Technology, 19 FCC 2d 36 (1969).

4/ Under Section 73.183 of the Rules, the 0.5

mV/m 50% skywave contours of clear channel

stations are protected from the .025 mV/m 10%

skywave contours of interfering signals. The Final

Acts provide protection (of WCCO's 0.5 mV/m 50%

skywave contour) only from YVLT's .025 mV/m 50%

skywave contour.

5/ Southeast Arkansas Radio, Inc., 61 FCC 2d 72

(1976).

6/ Ia

1/ _E, Weaks McKinney Smith, 22 FCC 211 (1957);

Radio ae 17 FCC 118 (1952); and Argus Press,

a 790 (1950).

8/ lowa State University of Science and

Technology, 19 FCC 2d 36 (1969).

9/ WWIZ, Ine., 37 FCC 685 (1964), aff'd sub nom.

Lorain Journal Co. v. FCC, 351 F.2d 824 (D.C. Clr.

1965), cert. denied, 383 U.S. 967 (1966).

A73

City of N.Y. Municipal Bieing System 659

Initial Decision

This initial decision is pertinent to the subsequent Commission

action in this docket, FCC 82-428, appearing in Vol. 91, FCC

2d pamphlet no. 4, dated January 1-31, 1983.

-City of N.Y. Municipal B/cing System

Docket No. 11227

FCC 78D-36

BEFORE THE

FEDERAL COMMUNICATIONS COMMISSION

WASHINGTON, D. C. 20554

In re Applications of

CITY OF NEW YORK MUNICIPAL DOCKET NO.

BROADCASTING SYSTEM (WNYC) 11227

New York, New York File No.

BSSA-266

For Special Service Authorization to operate

additional hours from 6 AM (EST) to sunrise

New York, New York and from sunset

Minneapolis, Minnesota to 10 PM (EST)

CITY OF NEw YorkK MUNICIPAL DOCKET NO.

BROADCASTING SYSTEM (WNYC) 17588

New York, New York File No.

BP-16148

MIDWEST RADIO-TELEVISION, INC. (WCCco) DOCKET NO.

Minneapolis, Minnesota 19403

File No.

BP-19151

For Construction Permits v

Appearances

Alfred J. Tighe, Jr., Charles S. Rhyne, and David M. Dixon (Rhyne &

A 74 91 F.C.C. 2d

660 Federal Communications Commission Reports

Rhyne), Thomas P. Brown, III, Sheila Mahony, J. Lee Rankin, Norman

Redlich, Evelyn Junge, Eugene Margolis, Adrian P. Burke, Gary Mail-

man, Joseph Bruno, and John C. Brennan on behalf of the City of New

York Municipal Broadcasting System; Jack P. Blume, Peter Shuebruk,

Benito Gaguine, Alan B. Kaufman, and Jerome S. Boros (Fly, Shue-

bruk, Blume, Gaguine, Boros & Schulkind) on behalf of Midwest Radio-

Television, Inc.; Lawrence Schwab and Peter W. Sipkins on behalf of the

State of Minnesota; Stanley Cohen (Cohn and Marks) on behalf of WHAS,

Inc.; Robert D. Powell on behalf c* the National Business Aircraft Asso-

ciation; Charles J. Peters on behalf of the Aircraft Owners and Pilots

Association; and Walter C. Miller, Thomas B. Fitzpatrick, P. W. Valicen-

ti, Roderick K. Porter, and Arthur I. Steinberg on behalf of the Chief,

Broadcast Bureau, Federal Communications Commission.

SUPPLEMENTAL

INITIAL DECISION OF ADMINISTRATIVE LAW JUDGE

FREDERICK W. DENNISTON

Issued June 15, 1978; Released June 29, 1978

TABLE OF CONTENTS

I Sea vicn eas 56a as £5 seb RbtR ET ESO kee TT Tr ee

Preliminary Statement .................. nKedl bake awead enedinse eins

Issue 1—Areas and Populations - WNYC

PE che cece bh sdbaessksdetehaVenswcsdeence kets 17

SEE Suet bb esl. 4 cbbae hocks cedsrideeebaeatanes sebaxe

Issue 2—Areas and Populations - WCCO

ETOP E T T eT eT Teer Ter eye ere 53

EE cele bineddaenssrkbncngde nena Vas tebe cae heaees

Issue 3—WNYC Interference to WCCO

EE elu es nntkd lébs cabbaunnseeeskne eeubariaeh 77

CS = Bee da lnd ie oi oe ha un ae oie bh See ues EROS ot

Issue 4—WCCO Interference to WNYC

a cc et ci casbe esa etdceedanesdh vanubens 6

nee ee on tee cer ere ae

Issue 5—WCCO Overlap of WDSM

‘ EE kc cded aod tGakbdss be vbw stéakes deRuBaeess és 138

PE cee tak asc sdadehaaenbeeevaaathakhenedwbs se een

Issue 6—WNYC Compliance with Section 73.24(b) of Ruies

665 C6 sth th MbkdeepOieh ber capeeeanagdags 145

PO NS s Base chadl ates beibed din iendu din bee’ Pes cbaes

91 F.C.C. 2d

City of N.Y. Municipal B/cing System 661

Issue 7—WNYC Prejudice to Class I-A Assignments

i ode eee sec eheheeanebaracehetash<ueehentees 159

ee Aor. acca ck ose bn cebes sa cassaaenseneu 172

Issue %—Suitability of WNYC Antenna Site

i tee eka at Secs eens shales ba hben enc hae 183

I 0 eC BLS cea pede oecebeeses i OE yry Sr ae 231

Issue 9—Maintenance of WNYC Antenna

eee ek ecicedebadetaavidohsenaenedcke ee 233

Erie eee oe accede bul cs Sacdede cs uwanteer 260

Issue 10—WNYC Program Service and Requirements

EE Cech eas sal Gata deade% shun une eeee deen 270

Chea gc EMAL El heduus teks bs bbeteevkeeevavaskee 379

Issue ll—Need for WNYC SSA Authorization

ence ad sr ak wigan wien vas Geunehnéeee e's 385

ec ctn np ccpesecnsees es | cRNA Lar AY 386

Issue 12—WNYC Ascertainment of Needs

i eis cc ekahcik eve cnaencesdeexeesdueen 387

ee te els cucube gabe rb ctxlenveneesertavect 399 |

Issue 13—Use of WNYC-FM to Satisfy Needs

RRR RSet REI REN er Ey Opn EE Pn 403

ec NI aE ge RR RR. SA MRA ae ADR Ne mL Ae 425

Issue 14—Whether WCCO Antenna Would Be Menace to Air Navigation

EE on 2 b600530 5 bib wana vecsaueheesauss bukee ea 427

EY SR ee rt i Cass ces Canbaneeeeresen 531

SE Feveaad ve 5k Oe bk cada UCU ONE UR da vawes ict rene’ es 559

Issue 15—Whether Proposals Would Be in Accord with Section 307(b) of Act

SE cid cid eles bdeeecunchssecnesuenchesneuaeh 567

EE a ee a Se ee ee 590

Issues 16 and 17—Conclusory - see Ultimate Conclusions

Issue 18—-WNYC 50 kW Proposal Conformity t» Sections 73.188(b) (2) and 73.30(c) of the

Rules or Possibie Waiver

es Eras cikit'ns £6 RheKbehEti a cin whew se hbis odes 602

Tees ohne k Coeatee eens hae veeuwes Fa 610

Issue 19—WNYC Site Availability

issue 20—Reporting of Changes under Section 1.65

ee re ee 615

Ce col. Leda v ded kuedete Wubaawane 624

Issue 2]—Availability of Funds to WNYC

EE wilavkndnan se vecdechdubddb dtodd hhc iaeaxd 628

ESS eee eee Oe Cee LL ee: ee 651

SII fs LLL ccc cdbcadsbewrcthalibocdcsel baadkdéastbubne. 660

ee oka n ound ce bh ceNihspab edna ened beoreeeakebeceaes 663

Ultimate Conclusions

Issues 16 and 17 ................-00e eee ee Cea te ee eee 668

91 F.C.C. 2d

Federal Communications Commission Reports

Foreword

1. Because of the number of issues involved and the inevitable tedious

and lengthy decision, a brief summation is helpful to its understanding.

2. The Municipal Broadcasting System of the City of New York oper-

ates stations WNYC-AM, FM, and TV. It has operated its AM station

here involved since 1924. WNYC-AM is regularly licensed for sunrise to

sunset on 1 kW of power. This limits the sign-on time from 4:30 a.m. in

June and July to 7:15 a.m. in December and January; and sign-off time,

from 5:30 p.m. in December to 9:00 p.m. in June and July. Since 1943,

however, under Special Service Authorization (SSA), the Commission has

permitted WNYC-AM to operate from 6:00 a.m. to 10:00 p.m. uniformly

throughout the year. Permanent right to use these added SSA hours is

the initial authority sought here. Those hours range from % hour to 1%

hours in the mornings during November through March (in the remaining

months sunrise is earlier than 6:00 a.m.) and from 1 hour to 4% hours in

the evenings through all 12 months. In this report these SSA hours are

generally referred to as the WNYC-AM “nighttime” operation.

3. During those SSA hours, WNYC-AM causes interference to station

WCCO, Minneapolis, Minnesota, which is a “clear channel” station oper-

ating on the same frequency due to the sky wave phenomena, which

greatly expands its nighttime service area. In granting the SSA’s over the

years, the Commission has made it plain that the authorizations conveyed

no permanent rights.

4. In 1954, the SSA application was set for hearing upon objection by

WCCO and an Initial Decision was issued by the then Presiding Officer,

Elizabeth C. Smith, on July 8, 1957, granting the SSA. As exceptions

were filed, it did not become final but the Commission did not act on the

matter due to the pendency of its docket on Clear Channel Broadcasting.

A decision in that case in 1961, 31 FCC 565, made provision for the filing of

an application for permanent authority, while reserving judgment there-

on, and in its reconsideration report, 45 FCC 400, in 1962, noted that by a

different directional pattern, it might be possible for WNYC-AM to

operate at increased power with as much or even greater protection to

WCCO. The Commission reactivated this proceeding on October 28, 1963,

and thereafter WNYC-AM filed its application for permanent authority

for the SSA hours and later for a change of antenna site and increase in

power to 50 kW.

5. WCCO has vigorously opposed each phase of the proceeding. In 1971,

it filed application to move its antenna site and erect a new type of antenna

which will increase its interference to the WNYC-AM signal in the New

York City area. That application is here considered, primarily on the issue

91 F.C.C. 2d

City of N.Y. Municipal Bi/cing System 663

Again, in 1954, at the request of WCCO, a hearing was ordered on the

pending SSA application and an Initial Decision was released July 8, 1957,

proposing a grant of continued SSA authorization but found permanent

authorization was not possible due to the pending decision in Docket No.

hazard found by the Federal Aviation Administration and not contro-

verted in this proceeding.

6. WNYC has made its own case difficult by failing to follow Commis-

sion guidelines and requirements as to ascertaining the community needs

and programming (Issues 10, 11, and 12). It is concluded, nevertheless,

that the public interest requires the granting of the 50 kW proposal which

subsumes the request for permanent authority for the SSA hours for the

present 1 kW operaticn.

7. A quotation from the 1957 Initial Decision of my predecessor, Eliz-

abeth C. Smith is apt:

. . . Itis urged that a municipally-owned tax-supported radio station, especially one

which is entirely non-commercial in its operation and devoted exclusively to the

service, education, entertainment, recreation, health, weifare and safety of the cit-

izens of the municipality in which it is located is an unusual phenomenon in and of itself;

and that the needs of New York City are, by any standards, unusual, both in kind and

degree. New York City is one of the largest, if not the largest urban couicentrations in

the world. Its government is second in size to the Federal Government. It is the

headquarters of the United Nations. Its very size and the complexity of its problems

create a need for almost every kind of service—for information on health and civil

defense, for adult education, for opportunities for artistic development of its citizens,

for assistance in the conduct of its government... .

Preliminary Statement

8. The City of New York Municipal Broadcasting System (WNYC)

commenced broadcasting in 1924, or 53 years ago. Following several

successive frequency assignments it was given 810 kc, but, following the

North American Regional Broadcasting Agreement in 1941, was there-

upon placed on 830 kc, the same frequency as station WCCO, Min-

neapolis, Minnesota, a Class I or clear channel station. Since then contro-

versy has raged between WNYC and WCCO as a result of interference

and the consequences thereof, due to the sky wave phenomena and the

greatly increased coverage of WCCO at nighttime.

9. The Commission has considered this problem for a number of years.

Since 1943, it has permitted WNYC, whose permanent authorization is

from sunrise to sunset only, to operate additional hours of 6:00 a.m. (EST)

to local sunrise and from sunset at Minneapolis to 10:00 p.m. (EST) on its

authorized power of 1 kW, pursuant to Special Service Authorizations

(SSA’s). A WNYC attempt to obtain permanent authorization for addi-

91 F.C.C. 2d

sss i au mea alarm

664 Federal Communications Commission Reports

tional hours was denied in 1942 (9 FCC 169) as being inconsistent with the

Commission’s Rule respecting the clear channel operation of WCCO.

of whether it will be a menace to air navigation (Issue 14). For the reasons

specified under that issue, that application would be denied because of the

6741, the Clear Channel proceeding.’ Following exceptions and oral

argument, however, no further action was taken due to the relationship to

the Clear Channel case.

10. In 1961 in Docket No. 6741, Clear Channel Broadcasting, 31 FCC

565, (Clear Channel I herein), the Commission established Note 2 to

Section 73.25, (originally Section 3.25, later renumbered) as follows:

NOTE 2: In view of special circumstances arising from the provision of a service

during some nighttime hours by a Class II station operating on 830 kHz at New York,

N.Y. (Le., from 6 a.m. to local sunrise and from sunset at Minneapolis to 10 p.m. e.s.t.),

applications will be accepted for such operation: Provided, That they will be acted upon

only after and in light of the decision reached in Docket No. 11227.

LL. In its subsequent reconsideration (November 21, 1962) of the Clear

Channel | decision, 45 FCC 400, (Clear Channel II) the Commission

made it plain it was not passing on the merits of the WNYC application,

and noted, in part:

.. . There appears to be the possibility that, if WNYC should operate nighttime ina

manner somewhat different than at present—e.g., with a different directional pattern

and possibly a different transmitter site—it might be possible to operate with power

greater than | kilowatt and still afford WCCO as much or even greater protection than

at present. We do not wish, at this time. to foreclose such possibility. We emphasize.

however, that we are not now passing on the merits of the question of operation during

certain nighttime hours by WNYC (a question to be decided in Docket 11227). We

emphasize also that it is not our intention to permit any nighttime operation by

WNYC, whatever the power, which would increase radiation toward WCCO beyond

that currently permitted under the special authorization.

By order released October 28, 1963 (F CC 63-978), the Commission reacti-

vated Docket No. 11227 and directed a time within which the application

contemplated by Note 2 might be filed, for consolidation herein. WNYC

thereupon filed its application (Docket No. 11227) for permanent au-

thority to operate 6:00 a.m. (EST) to 10:00 p.m. (EST) pursuant to that

note

12. On March 16, 1964, WNYC tendered its application, Docket No.

17588, for a construction permit to increase power to 50 kW, change

' That Initial Decision was not officially reported but may be found at 15 RR 545

t Frederick W. Denniston has served as the Presiding Judge subsequent to October 14, 1975, FCC

T5M~1764. At least three others had presided earlier but subsequently retired

91 F.C.C. 24

City of N.Y. Municipal B/cing System 665

transmitter site and to operate during the stated hours of 6:00 a.m. (EST)

and 10:00 p.m. (EST) and this was accepted for filing over WCCO objec-

tions on November 17, 1965, 1 FCC 2d 1370. This was confirmed on

reconsideration (8 FCC 2d 1047, released July 12, 1967) by which time

WCCO had filed its application for increase in power to 750 kW. The latter

application was rejected by that order.

13. In 1971, WCCO filed its application for a change in transmitter site

and type of antenna and this was accepted for filing by the Commission (33

FCC 2d 285, released January 25, 1972). In that decision, the Commission

superseded prior specifications of issues with a new compilation. Subse-

quently, issues have been added so that the list outstanding are dealt with

seriatim hereinafter and will not be stated here. Where necessary, issue

numbers have been supplied.

14. While the Commission has characterized these applications as

“mutually exclusive” (83 FCC 2d 285, par. 9), they are not so in the usual

sense. Thus, given an adequate record, all applications could be granted.

15. Following the 1963 reactivation of the proceeding, hearings and

conferences have been held herein at various dates from December 10,

1963 to June 2, 1977.* The record was finally closed on August 24, 1977,

and the filing of proposed findings and replies was completed September

16, 1977.

16. WCCO and WNYC, as well as the Broadcast Bureau, have partici-

pated in all phases of the proceeding. The State of Minnesota, intervenor,

supports the WCCO application and opposes WNYC and each filed

proposed findings and replies, as did the Broadcast Bureau. On Issue 14,

the air hazard issue relating to the proposed WCCO relocation and

change of type of antenna, proposed findings and replies were filed as to

| that issue alone, by Aircraft Owners and Pilots Association (AOPA) and

| National Business Aircraft Association (NBAA) in

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.