action on (this) application be withheld pending a decision on petitioner's application (BP-16712, Docket No. 18076) for change in facilities." i 4. Furthermore, the applicant claims that a redesign of the antenna system to achieve compliance with section 73.37 of the rules would require, in addition to the presently proposed three towers, a fourth tower at a cost beyond realistic limits, and states that the proposed station would provide a first transmission service for St. James and that, at present, St. James relies on distant stations located in the Minneapolis-St. Paul area and on other, unspecified communities located some 30 to 40 miles from St. James. 5. The applicant's contention that KSMM's field intensity measurement data are inadequate must be rejected. Flexibility in the taking of field intensity measurements is provided for by the rules since the basic purpose of such procedure is to secure meaningful data. In this particular case, we note that the measurements were made on radials extending generally along the basin of the Minnesota River where much water and swampy areas are encountered. While section 73.186 (a)(1) of the rules encourages more measurements under more ideal circumstances, we must conclude, under the circumstances here indicated, that the data adequately established overlap of contours in violation of section 73.37 of the rules. 6. The applicant describes the overlap involved as of a de minimis nature and the interference as virtually de minimis. However, there is no disputing the proposal does not comply with the allocation standards. On the basis of the unrefuted data on file, the Commission must find that the overlap of the proposed 0.025 mv./m. contour and the KSMM 0.5 mv./m. contour is significant, and the overlap of the KSMM 0.05 mv./m. contour and the proposed 1.0 mv./m. contour is substantial. 7. With regard to the applicant's other contentions, we first observe that it has not been shown that the additional cost of a fourth antenna element, assuming a redesigned radiation pattern could correct the overlap, would be prohibitive. Second, to hold that section 73.37(b), which itself constitutes a relaxation of the standard prescribed by section 73.37(a), should be waived to permit the establishment of a first broadcast service would result in section 73.37 (b) becoming a nullity in a greater number of instances in which that ground could be urged. Third, although the applicant claims that some signals serving St. James are inadequate, it is admitted that service is provided by stations in the Minneapolis-St. Paul area and from other stations in unspecified communities. In this connection, we note that stations KYSM-FM, KEYC-FM and KEYC-TV in Mankato, Minn., approximately 35 miles from St. James provide service to the latter community. 8. With reference to the applicant's request that action on the application be withheld pending final action on the application to change the frequency of KSMM, this would not only be against the Commis 1 The applicant refers to an application to change frequency of KSMM from 1530 kc. to 1170 kc. Subsequent to the filing of the applicant's pleadings, the KSMM application was dismissed on June 24, 1968. sion's stated policy (see Contingent Applications in the Broadcast Services, 22 R.R. 299 (1961)), but also the dismissal of the KSMM application on June 24, 1968, has removed the contingency. 9. Finally, the applicant's parenthetical reference to a hearing apparently is intended to suggest that a hearing would be appropriate for a resolution of the question of whether a waiver of section 73.37 of the rules should be granted. However, the Commission finds that the matters urged by the applicant are not sufficient to overcome the Commission's grave concern with preserving the integrity of our allocation standards. Moreover, studies disclose that an FM channel could be assigned to St. James and meet all the technical requirements of the Commission's rules. Accordingly, in the absence of allegations which, if true, would support a waiver, no hearing is required. United States v. Storer Broadcasting Company, 351 U.S. 192 (1956). 10. Accordingly, It is ordered, That the applicant's petition for waiver of alternative relief Is denied; that the request of Progress Valley Broadcasters, Inc., Is granted; and that the application of St. James Broadcasting Company, Is dismissed. FEDERAL COMMUNICATIONS COMMISSION, 17 F.C.C. 2d David S. Sterens on behalf of Russel Shaffer; David H. Lloyd, Reed Miller, and Karl Anuta on behalf of International Electronic Development Corporation; Donald M. Malone on behalf of Environmental Science Services Administration, Department of Commerce; and Leo I. George, Edward J. Reilly, and William A. Kehoe, Jr. on behalf of the Chief, Broadcast Bureau, Federal Communications Commission. DECISION (Adopted March 26, 1969) BY THE REVIEW BOARD: BERKEMEYER, NELSON AND SLONE. 1. This proceeding involves the mutually exclusive applications of Russel Shaffer (Shaffer), and International Electronic Development Corp. (IEDC), each seeking a construction permit to establish a new Class C FM broadcast station to operate on channel 234 (94.7 MHz) at Boulder, Colo. By order (Mimeo No. 93013, 31 F.R. 15554) released December 6, 1966, the Chief of the Broadcast Bureau, pursuant to delegated authority, designated the applications for consolidated hearing on the following issues: (1) the standard comparative issue, under which evidence would be considered with respect to areas and populations within the proposed 1 mv./m. contours and services of at least 1 mv./m. thereto; and (2) the ultimate public interest issue. Subsequently, the Environmental Science Services Administration (ESSA) of the Department of Commerce sought intervention on behalf of its Institute for Telecommunications Sciences and Aeronomy (ITSA) which alleged that there is a reasonable likelihood that operation of the * applicants as proposed may cause excessive interference and/or impair the usefulness of [its] Table Mountain facility located at Boulder, Colo.1 Pursuant to the Examiner's order (F.C.C. 67M-119, ** 1 A reorganization effected during the hearing in this proceeding, among other things, divided ITSA into the Aeronomy Laboratory, the Space Disturbance Laboratory and the Institute for Telecommunication Sciences. Since the two laboratories and the Institute concurrently utilize the Table Mountain_site, the abbreviation ITSA is used herein to mean the two laboratories as well as the Institute. For the past 10 years. Table Mountain has served as the principal experimental receiving station for programs in ITSA involving 17 F.C.C. 2d released January 24, 1967, reconsideration denied F.C.C. 67-254, released February 15, 1967) ESSA was made a party intervenor on the condition that an issue or issues be added relating to the alleged interference that would be caused to the Table Mountain operation. An appropriate request was made before the Review Board which, in response thereto, added the following issue (hereinafter the Table Mountain issue): 2 To determine whether the proposals of Russel Shaffer and International Electronic Development Corp. would cause interference to the operation of the Environmental Science Services Administration's facilities at Table Mountain, Colo.; and, if so, whether such interference would impair the usefulness of that facility. The burden of proceeding with the introduction of evidence to show that the applicant's proposals would cause interference to the Table Mountain facilities and that such interference would impair the usefulness of the facilities was placed upon ESSA, but the ultimate burden of proof under the Table Mountain issue rested upon the applicants in regard to their respective proposals. In denying IEDC's petition for reconsideration which sought to have both burdens imposed upon ESSA, the Board stated that, since there is no established criterion in existence for determining whether harmful interference would occur, ESSA is required to make an initial presentation which shows that the applicants' proposals would cause interference to the operation of its facilities, and that such interference would impair their usefulness; following this presentation, the applicants have the burden of refuting the showing and the ultimate burden of persuasion with respect to the issue. (8 F.C.C. 2d at 623, 10 R.R. 2d at 504) 2. On April 5, 1968, Hearing Examiner Millard F. French released an initial decision, F.C.C. 68D-20, recommending grant of IEDC's application. In reaching this result, the examiner concluded that IEDC is entitled to a major preference for its far more efficient use of the frequency in the area of coverage and that IEDC should also be accorded slight preferences in the areas of diversification, and integration of ownership and management. With respect to the Table Mountain issue, the examiner concluded that, upon consideration of all the facts, the most ESSA has shown is a conjectural possibility that some interference might result from the operation of either of the proposed FM stations, and that such possibility is based on certain hypothetical conditions; and that neither applicant will, in any likelihood, cause any harmful interference. Nevertheless, since Shaffer would place a lesser signal over the Table Mountain facilities than would IEDC, the examiner awarded the former a preference which was somewhat the reception of weak radio signals from distant transmitters located on earth and in satellites, from the sun and other radio astronomical sources, and from terrestrial radio echoes. ITSA provides technical information on radio propagation factors affecting the design and use of radio systems, with emphasis on long range radio transmission problems. Radio propagation studies are carried out for ionospheric, groundwave, and line-of-site paths. The information obtained is used in the allocation and use of radio frequencies; the evaluation of the capabilities and limitations of radio communication systems; the development of standards and methods of measurement for radio systems to fulfill the needs of federal agencies and industry. ITSA performs consulting and advisory work for other government, commercial and scientific agencies. A part of the experimental work required to render these services is done at the Table Mountain site (ESSA exhibit A-4). Memorandum opinion and order. 7 F.C.C. 2d 989, 9 R.R. 2d 1352, reconsideration denied 8 FC.C. 2d 622, 10 Ř.R. 2d 502 (1967). lessened by the fact that each applicant had agreed to work with ESSA in eliminating any interference that might occur.3 3. The proceeding is now before the Review Board on exceptions filed by both applicants and the intervenor ESSA. We have reviewed the initial decision in light of these exceptions, the arguments of the parties and our examination of the record. However, for the reasons hereinafter stated, the Board believes that the IEDC application should be denied, and that Shaffer's application be granted. Except as modified in this decision and in the rulings on exceptions contained in attached Appendix II, the examiner's findings of fact and conclusions are adopted. FINDINGS OF FACT 4. Table Mountain, the principal site where ESSA's experimental work is performed, is described in the examiner's initial decision at paragraphs 32-33. As noted there, the site provides a suitable radio noise environment for ESSA's operations. ESSA is concerned with protection of this site from harmful interference and is endeavoring by various efforts to preserve its usefulness. To this end, ITSA formed an Interference Committee to advise the management in matters of purchase, or utilization of equipment or facilities with regard to interference matters. Pursuant thereto, this committee has investigated the possible harmful effect electrical noise from the operation of new industrial plants in the Boulder area might have on ESSA's facilities. When the Martin-Marietta Co. and the International Business Machines Co. (IBM), proposed to construct new plants in the area, the committee informally consulted with them about the types of equip ment and machinery which were proposed to be used. As a result of these consultations, the committee, in its judgment, concluded that the proposed plants would not be a source of objectionable electrical noise. The Beech Aircraft Corp. plant, approximately 1.3 miles from Table Mountain, has been in operation for a number of years and has not been a source of interference, nor has the operation of the IBM plant, since its completion, located 2.7 miles away caused interference. ESSA considers a separation of 2 miles from such sources of electrical noise as adequate protection. 5. The State of Colorado in 1967 approved an act entitled the "Telecommunications Research Facilities Protection Act of 1967" which provides for appropriate land zoning and control of electromagnetic wave radiation within 2 miles of the Table Mountain site. ESSA considers the interference levels and other provisions of this Act adequate The examiner's recommendation to grant the IEDC application was made subject to the condition that the "station will be operated in such a manner as not to cause harmful interference to the Environmental Science Services Administration, Department of Commerce, facility at Table Mountain that will unduly impair the usefulness of that facility." Oral argument was held before a panel of the Review Board on Oct. 10, 1968. The site is partially shielded from the sources of much of the nearby man-made noise due to its elevation and is also protected in part by its distance from these sources. Record evidence shows that there are three broad categories of noise, i.e., cosmic noise, terrestrial noise, and man-made noise. The latter is caused by rotating machinery, arc welders, and other types of electrical equipment characteristic of an industrialzed civilization; undesired signals from radio stations also fall into this category. This committee has no advisory function as to radio stations. |