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                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554

In re:  Application of          )
                                )
 NASSAU COMMUNITY COLLEGE        )File No. BMLED-951024KA
                                )
For Modification of the License of )
Station WHPC(FM), Garden City, New York)

                                 
                  MEMORANDUM OPINION AND ORDER

 Adopted: August 4, 1997  Released:  August 13, 1997

By the Commission:

     1. This Order will address the requests of Five Towns College ("Five Towns") and Friends
of WBAU, Inc. ("Friends"), for review of a June 12, 1996 staff decision.  That decision considered
the voluntary termination of a time sharing agreement between Nassau Community College (licensee
of WHPC(FM)) and Adelphi University (licensee of WBAU(FM)). Over the objections of Five
Towns and Friends, the staff decision cancelled the license of WBAU at WBAU's request, and
modified the license of WHPC to authorize full time operations, using the time relinquished by
WBAU.     

                            BACKGROUND
     
     2. In general, noncommercial educational FM radio stations are authorized to operate for an
unlimited number of hours each day.  47 C.F.R.  73.561.  Our rules require licensees to share a
channel if they do not operate at least 12 hours per day each day of the year.  Id.  Time sharing is
also used as one means of resolving comparative proceedings in which more than one applicant
wishes to construct a new noncommercial station to serve a particular community, but only one
channel is available.  

     3. The present case involves a time sharing arrangement between noncommercial educational
stations WBAU and WHPC, two college stations that had for twenty years shared a single frequency,
with each operating only part-time.  Pursuant to a mutual agreement, however, these two stations
decided to change that relationship.  WHPC would apply for full-time operations, and if the
Commission approved WHPC's application, WBAU would sell its equipment to WHPC and
voluntarily turn in WBAU's license for cancellation.  The staff's letter decision approved this
proposal, modified WHPC's license to authorize 24 hour operations, and cancelled WBAU's license. 
 

     4. Friends and Five Towns, not-for-profit groups interested in establishing their own
educational radio stations in the Long Island, New York area, challenge the staff's decision.  They
maintain that the decision is inconsistent with the Communications Act of 1934, which establishes
rights of public participation and Commission consent in certain types of radio proceedings.  See 47
U.S.C.  309 and 310.  Viewing this as an abandonment of a frequency by WBAU, Friends and Five
Towns argue that the staff should not have allowed WHPC to have the additional time without first
filing an application for a new station or for major modification of existing facilities.  Such
applications are subject to competing applications, so under the scenario presented, WHPC would
have had to compete with Friends, Five Towns, and others for the time relinquished by WBAU. 
Friends and Five Towns argue that the staff erred in treating this case instead as a voluntary
departure from a time sharing agreement with an accompanying minor modification of WHPC's
license, events which do not trigger public rights to file competing applications. 

     5.  Alternatively, Friends and Five Towns argue that the staff should have treated the case
as an assignment or transfer of license proceeding because it allegedly involved the merger of two
separate stations into one.  As in merger cases, Five Towns asks us to consider the potential effect
of the transaction on broadcast diversity, arguing that this transaction eliminated WBAU as an
independent broadcast "voice." 

     6. Finally, Five Towns opposes the staff's view that certain issues raised are best considered
in the context of WHPC's filing for license renewal in 1998.  Five Towns indicates that it wants to
base a challenge on its belief that WBAU violated our rules in going off the air, and therefore
believes that it should not have to await the license renewal of what it considers a successor entity
to WBAU.  

                            DISCUSSION

     7. Upon consideration of the record in this case, we affirm the staff decision.  The objectors
base their arguments on their own views of what should be considered "major" and "minor" changes
to a station's authorization.  However, these are legal terms of art, and an FM station's change in
hours does not fit the narrow definition of a "major" change, as stated in our rules.  There is no
public right to file a competing application against a proposal for a change that is not defined as
major.  Although others may want to begin sharing time with a station, the rules do not contemplate
their raising such matters in the context of a minor change, such as the station's application to change
its operating hours. Id. See generally 47 C.F.R.  73.561.  As will be discussed below, the rules
provide other opportunities for the public to make such requests.  See para. 11 infra.

     8.  Nor would we consider this change in a time sharing arrangement to be an assignment of
license.  See, e.g., 47 C.F.R.  73.3540(f).   As explained in the Letter Decision, the parties originally
filed an assignment application but withdrew it on advice of the Chief of the Audio Services
Division.  Letter Decision at n. 5.  That advice was based on the fact that Nassau Community
College already held a license to operate on Channel 212, making an assignment of license
unnecessary.  Id.  Further, even had this case been treated as an assignment, the rights of the parties
would not have changed significantly.  Basically, Five Town and Friends wanted to compete with
WHPC for the time vacated by WBAU, but there is no opportunity for the public to file a competing
assignment application, only to file an objection or petition to deny the assignment.  As part of the
minor modification proceeding, Five Towns and Friends had the opportunity to object and we
considered their objections before reaching any decision.  
     
     9. As the staff decision noted, modifications of time share agreements are governed in
general by 47 C.F.R.  73.561.  That rule permits modifications of time share agreements at the sole
discretion of the licensees concerned, so long as the Commission is notified.  Given that fact, we
believe that creating the sort of third-party rights the objectors advocate would be inappropriate, even
where, as here, the modified agreement results in the elimination of one of the stations.  Section
73.561(c) does not require the retention of any minimum number of operating hours by either
licensee. Nor does it or any other rule require public participation in the decision of a licensee to turn
in its license for cancellation.  See generally 47 C.F.R.  73.1750.  In short, under the terms of the
relevant rules, the staff might properly have permitted the changes through notifications; certainly
by treating the changes as a minor modification and entertaining informal objections they provided
adequate procedural protections to anyone affected by the changes. 

     10. Further, we are unpersuaded by Five Towns' argument that continued time sharing of the
channel is necessary to promote diversity of voices in the market.  Five Towns has not shown that
Nassau-Suffolk, the 14th largest market nationwide, would be so harmed by the absence of the
independent, albeit time-limited, voice of WBAU, or some successor to its share time rights, that we
should deviate from our ordinary procedures in dealing with share-time arrangements among
licensees. We note in this regard that although diversity of voices is an important goal of the
Commission, the primary intent of the share-time procedures is to accomodate demands for
educational channels by competing parties where spectrum is limited and to ensure efficient use of
the spectrum that is available.  Thus, licensees operating 12 or more hours per day are not subject
to involuntary share time proposals, even though permitting such proposals might arguably increase
diversity.  See 47 C.F.R.  73.561(b). 

     11. Finally, we reject the petitioners' arguments that the pendency of the current proceeding,
coupled with the contingent conditions under which WBAU offered to relinquish its license, results
in the license for WBAU still existing and being available for reassignment now to entities wanting
to share time with WHPC.  WBAU's license was cancelled on June 12, 1996 and its call sign deleted. 
If Five Towns and Friends wish to operate a radio station on the same channel as Nassau Community
College, WHPC, they must follow our time sharing rules.  Those rules provide that parties may file
time sharing applications at any time, provided that the parties seeking to share time reach an
agreement with the existing licensee.  47 C.F.R.  73.561(b).  If Five Towns and/or Friends reach
an agreement with Nassau Community College the staff could begin to process it immediately. 
Otherwise, any time sharing application could be considered only in the context of next year's license
renewal application. As we have indicated previously, the Commission will not entertain time
sharing requests that do not conform to these requirements.  Westchester Council for Public
Broadcasting, 8 FCC Rcd 2213, 2214 (1993) (upholding dismissal of share-time request where the
applicant did not indicate whether it attempted to reach an agreement with the existing licensee). 

                         ORDERING CLAUSES

     12.  Accordingly, IT IS ORDERED that the Application for Review of Friends of WBAU
and the Petition for Reconsideration of Five Towns College ARE DENIED.  The staff's June 12,
1996 decision which modified the license of WHPC(FM) to allow for unlimited hours of operation
and cancelled the license of station WBAU IS AFFIRMED. 

                                                     FEDERAL COMMUNICATIONS COMMISSION



                                                William F. Caton
                                                Acting Secretary