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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1878%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1985
- **Citation:** 470 U.S. 1084

## 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,
v.

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.

2

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.

I.

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.

3

A.

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

4

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.

B.

The allocation policy described above is the result of
many rulemaking proceedings, conducted for close to half

ee Oe ee

:
:
;

5

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-

6

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.

C.

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

7

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

i
;
2

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

i
}
:

if
g

ie
Biss
at
She
et
!
=a]

i
iF
+
i
I
;

|
|
1

Id, at 639-40. Following this reasoning, the Commission
took no action on WNYC-AM’s application “because of

10

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:

11

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

12

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.

13

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.

14

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-

—

15

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.

16

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).

17

(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.

18

A.

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-

20

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).

B.

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

21

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

22

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

23

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.

24

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

25

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

26

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.

27

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.%

C.

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-

28

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.

29

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.’’).

30

D:

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

31

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.

32

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

33

(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).

34

35

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,

V.

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

36

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

ee

37

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,

v.

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,

38

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

y

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 4.

* 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.

© See FCC v. WNCN Listeners Guild, 101 S.Ct. 1266 (1981).

” 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.

© Tr. 10680-83.

*! 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. 9807, 10052, 10069.

* 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. pa

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1878%3A2. Public record. Not legal advice.