WPC+5 2HB9X@ Z3|P  (TT)Times New Roman (TT)RomanTimes New Roman (Bold) (TT)"5@^*7DSS77S^*7*.SSSSSSSSSS..^^^Jxooxf]xx7Axfxx]xo]fxxxxf7.7NS7JSJSJ7SS..S.SSSS7A.SSxSSJP!PZ*7777CE7SSxJxJxJxJxJooJfJfJfJfJ7.7.7.7.xSxSxSxSxSxSxSxSxSxSxJxSxSxSxSxS]SxSxJxJoJoJoJfJfJfJxSxSxxSxSxSxSCS7S777SAxSf.fExSxSxSxo7oE]A]AN:*LS7JSSSSS.4}}S2S}277JJS77SS7J72t7[[[[^ee*C`^.wRSSn[Cfx`xWlRx[][ceIfIs`Wx[rriwge*7DSS77S^*7*.SSSSSSSSSS..^^^Jxooxf]xx7Axfxx]xo]fxxxxf7.7NS7JSJSJ7SS..S.SSSS7A.SSxSSJP!PZ7SJSS7]777JJ:S7A7xx*7SSSS!S7.S^7SC[227`L*724S}}}Jxxxxxxoffff7777xxxxxxx^xxxxxx]SJJJJJJoJJJJJ....SSSSSSS[SSSSSSSHP LaserJet 4/4M II NTXPT1HPLAS4.WRSSC\  P6Q,,G"kP2. zZ3|P Times New Roman (TT)Roman5y.C8*XC\  P6QP 6y.K8?XqK\  P@QP77PC2X DXP\  P6QXP.87UC2XxXU4  pQX9W!0(X h0\  P6QhPI(!XI,(\  P6Q,PTTTTT//^^^Jxooxf\xx7Axfxx\xo\fxxxxf7/7NT7JTJTJ7TT//T/TTTT7A/TTxTTJP!PZ7TJTT7\777JJ:T7A7xx*7TTTT!T7.T^7TB[227`K*723T}}}Jxxxxxxoffff7777xxxxxxx^xxxxxx\TJJJJJJoJJJJJ////TTTTTTT[TTTTTTTApple LaserWriter II NTXPT1APLAIINT.WRSC\  P6Q"oUP2u 3`v p Times New Roman (TT)Times New Roman (Bold) (TT) X- I. A. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)#X\  P6G;qP##XP\  P6Q DXP#a8DocumentgDocument Style StyleXX` `  ` a4DocumentgDocument Style Style . 2 k k } v" a6DocumentgDocument Style Style GX  a5DocumentgDocument Style Style }X(# a2DocumentgDocument Style Style<o   ?  A.  a7DocumentgDocument Style StyleyXX` ` (#` 2"t >  {BibliogrphyBibliography:X (# a1Right ParRight-Aligned Paragraph Numbers:`S@ I.  X(# a2Right ParRight-Aligned Paragraph Numbers C @` A. ` ` (#` a3DocumentgDocument Style Style B b  ?  1.  2< T  ta3Right ParRight-Aligned Paragraph Numbers L! ` ` @P 1. ` `  (# a4Right ParRight-Aligned Paragraph Numbers Uj` `  @ a. ` (# a5Right ParRight-Aligned Paragraph Numbers _o` `  @h(1)  hh#(#h a6Right ParRight-Aligned Paragraph Numbersh` `  hh#@$(a) hh#((# 2n>a7Right ParRight-Aligned Paragraph NumberspfJ` `  hh#(@*i) (h-(# a8Right ParRight-Aligned Paragraph NumbersyW"3!` `  hh#(-@p/a) -pp2(#p Tech InitInitialize Technical Style. k I. A. 1. a.(1)(a) i) a) 1 .1 .1 .1 .1 .1 .1 .1 Technicala1DocumentgDocument Style Style\s0  zN8F I. ׃  2|'a5TechnicalTechnical Document Style)WD (1) . a6TechnicalTechnical Document Style)D (a) . a2TechnicalTechnical Document Style<6  ?  A.   a3TechnicalTechnical Document Style9Wg  2  1.   2"Ta4TechnicalTechnical Document Style8bv{ 2  a.   a1TechnicalTechnical Document StyleF!<  ?  I.   a7TechnicalTechnical Document Style(@D i) . a8TechnicalTechnical Document Style(D a) . 2p!3Te  Doc InitInitialize Document Stylez   0*0*0*  I. A. 1. a.(1)(a) i) a) I. 1. A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:d<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddnddddddd21@7+@w.Z#"5@^2Coddȧ8CCdr2C28ddddddddddCCrrrdzNdzoȐC8CtdCdoYoYCdo8Co8odooYNCodddYO,Oh2CC!CCPRCdodddddȐYYYYYN8N8N8N8oddddooooddoddddzodddYYYYYYddddooPoNoNCNodo8RoodȐYYoNoNNF2ldCdddddd 1. 1. 1. a.(1)(a) i) a) 1. A. a.(1)(a)(i) 1) a)x 1. This Order will address the requests of Five Towns College ("Five Towns") and Friends  XK- xof WBAU, Inc. ("Friends"), for review of a June 12, 1996 staff decision.=XK>y yO- xԍ Friends filed an Application for Review to the Commission. Five Towns filed a Petition for Reconsideration  x>directed to the staff. Because both raise similar issues we are considering their arguments together in this consolidated proceeding. = That decision  x[considered the voluntary termination of a time sharing agreement between Nassau Community  xCollege (licensee of WHPC(FM)) and Adelphi University (licensee of WBAU(FM)). Over the  X- xMobjections of Five Towns and Friends, the staff decision cancelled the license of WBAU at  xWBAU's request, and modified the license of WHPC to authorize full time operations, using the  X-time relinquished by WBAU.>y yOq- xԍ Letter from Linda Blair, Chief, Audio Services Division, Mass Media Bureau, to Margaret L. Miller, Esq., Ref.  yO9-1800B3CRB, (June 12, 1996)(on file Audio Services Division)(hereinafter Letter Decision). pp  X-" BACKGROUND ă x  X|-  x 2. In general, noncommercial educational FM radio stations are authorized to operate for  xan unlimited number of hours each day. 47 C.F.R.  73.561. Our rules require licensees to share  XN- xa channel if they do not operate at least 12 hours per day each day of the year. Id. Time sharing  xis also used as one means of resolving comparative proceedings in which more than one applicant  xwishes to construct a new noncommercial station to serve a particular community, but only one" @0*''ZZ\"  X-channel is available.X) yOy- xKԍ The Commission has solicited public comment on whether time sharing should continue to be a factor used  yOA- x;to evaluate competing noncommercial educational applicants. Notice of Proposed Rule Making, MM Docket No.  yO -9531, Comparative Standards for New Noncommercial Educational Applicants, 10 FCC Rcd 2877, 2879 (1995).   X-  Px 3. The present case involves a time sharing arrangement between noncommercial  xyeducational stations WBAU and WHPC, two college stations that had for twenty years shared  xNa single frequency, with each operating only parttime. Pursuant to a mutual agreement,  x.however, these two stations decided to change that relationship. WHPC would apply for full xtime operations, and if the Commission approved WHPC's application, WBAU would sell its  xyequipment to WHPC and voluntarily turn in WBAU's license for cancellation. The staff's letter  xdecision approved this proposal, modified WHPC's license to authorize 24 hour operations, and cancelled WBAU's license.  X -  mx 4. Friends and Five Towns, notforprofit groups interested in establishing their own  xZeducational radio stations in the Long Island, New York area, challenge the staff's decision. They  xmaintain that the decision is inconsistent with the Communications Act of 1934, which  x establishes rights of public participation and Commission consent in certain types of radio  X - x=proceedings. See 47 U.S.C.  309 and 310. Viewing this as an abandonment of a frequency by  x<WBAU, Friends and Five Towns argue that the staff should not have allowed WHPC to have the  xadditional time without first filing an application for a new station or for major modification of  x-existing facilities. Such applications are subject to competing applications, so under the scenario  xpresented, WHPC would have had to compete with Friends, Five Towns, and others for the time  xrelinquished by WBAU. Friends and Five Towns argue that the staff erred in treating this case  xinstead as a voluntary departure from a time sharing agreement with an accompanying minor  xMmodification of WHPC's license, events which do not trigger public rights to file competing applications.  X-  Mx 5. Alternatively, Friends and Five Towns argue that the staff should have treated the case  x.as an assignment or transfer of license proceeding because it allegedly involved the merger of  x<two separate stations into one. As in merger cases, Five Towns asks us to consider the potential  xeffect of the transaction on broadcast diversity, arguing that this transaction eliminated WBAU as an independent broadcast "voice."  X7-  _x 6. Finally, Five Towns opposes the staff's view that certain issues raised are best  xconsidered in the context of WHPC's filing for license renewal in 1998. Five Towns indicates" 0*%%ZZ>"  X- xthat it wants to base a challenge on its belief that WBAU violated our rules in going off the air ) yOy- xyԍ Specifically, Five Towns argues that WBAU violated 47 C.F.R.  73.561(d) by going off the air prior to  xreceiving affirmative permission from the FCC. We agree with the staff's letter which found that this argument raised  xno substantial and material question of fact, and noted that WBAU advised the staff of its intent to discontinue operations.,  x=and therefore believes that it should not have to await the license renewal of what it considers a successor entity to WBAU.  X-( DISCUSSION ă  Xv-  nx 7. Upon consideration of the record in this case, we affirm the staff decision. The  xobjectors base their arguments on their own views of what should be considered "major" and  xL"minor" changes to a station's authorization. However, these are legal terms of art, and an FM  xstation's change in hours does not fit the narrow definition of a "major" change, as stated in our  X - xrules.  ) yO{- xԍ #]\  PCqP#For noncommercial educational FM stations, a major change is any change in frequency or community of  xJlicense or any change in power or antenna location or height above average terrain (or combination thereof) which  x,would result in a change of 50% or more in the area within the station's predicted 1 mV/m field strength contour. 47 C.F.R.  73.3573(a)(1). There is no public right to file a competing application against a proposal for a change  xthat is not defined as major. Although others may want to begin sharing time with a station, the  xrules do not contemplate their raising such matters in the context of a minor change, such as the  X - xystation's application to change its operating hours. Id. See generally 47 C.F.R.  73.561. As will  xbe discussed below, the rules provide other opportunities for the public to make such requests.  X -See para. 11 infra.  Xy-  x 8. Nor would we consider this change in a time sharing arrangement to be an assignment  Xb- x/of license. See, e.g., 47 C.F.R.  73.3540(f). As explained in the Letter Decision, the parties  xoriginally filed an assignment application but withdrew it on advice of the Chief of the Audio  X4- xServices Division. Letter Decision at n. 5. That advice was based on the fact that Nassau  x[Community College already held a license to operate on Channel 212, making an assignment of  X- xjlicense unnecessary. Id. Further, even had this case been treated as an assignment, the rights  xjof the parties would not have changed significantly. Basically, Five Town and Friends wanted  x/to compete with WHPC for the time vacated by WBAU, but there is no opportunity for the  xpublic to file a competing assignment application, only to file an objection or petition to deny  X- xthe assignment. ) yO!- x/ԍ Nor would the issues that the parties indicate they wished to raise be appropriate in an assignment  xproceeding. The primary reason for Commission review of assignment applications is for us to consider the legal  xqualifications of the parties. The sufficiency of an applicant's programming is not generally considered in the  x\assignment context, but rather in renewal proceedings. Nor would a station's offair status be necessarily"K$0*%%x$"  xdisqualifying in the sales context. It is our general practice to grant assignment applications for silent stations conditioned upon the assignee's return of the station to the air.  As part of the minor modification proceeding, Five Towns and Friends had the" 0*%%ZZ"  X-opportunity to object and we considered their objections before reaching any decision. ) yO- xԍ Friends also believes that the description of the application which appeared on an FCC public notice was  x<inaccurate. The notice described the filing as "lic to cover (BRED9101125VC) for changes." The file number  xBRED9101125VC is that of WHPC's last license renewal application. There has been no showing that this  xdescription was inadequate to alert the public that WHPC was applying to make a change in its previous license authorization, or that Five Towns and Friends were not able to participate due to this public notice language.   X-x  X-  x 9. As the staff decision noted, modifications of time share agreements are governed in  xgeneral by 47 C.F.R.  73.561. That rule permits modifications of time share agreements at the  xZsole discretion of the licensees concerned, so long as the Commission is notified. Given that fact,  xwe believe that creating the sort of thirdparty rights the objectors advocate would be  xinappropriate, even where, as here, the modified agreement results in the elimination of one of  x]the stations. Section 73.561(c) does not require the retention of any minimum number of  xoperating hours by either licensee. Nor does it or any other rule require public participation in  X1- x]the decision of a licensee to turn in its license for cancellation. See generally 47 C.F.R.   x[73.1750. In short, under the terms of the relevant rules, the staff might properly have permitted  xthe changes through notifications; certainly by treating the changes as a minor modification and  xentertaining informal objections they provided adequate procedural protections to anyone affected by the changes.  X -  x 10. Further, we are unpersuaded by Five Towns' argument that continued time sharing of  xithe channel is necessary to promote diversity of voices in the market. Five Towns has not shown  xthat NassauSuffolk, the 14th largest market nationwide, would be so harmed by the absence of  xthe independent, albeit timelimited, voice of WBAU, or some successor to its share time rights,  xthat we should deviate from our ordinary procedures in dealing with sharetime arrangements  x.among licensees. We note in this regard that although diversity of voices is an important goal  x.of the Commission, the primary intent of the share-time procedures is to accomodate demands  xfor educational channels by competing parties where spectrum is limited and to ensure efficient  xuse of the spectrum that is available. Thus, licensees operating 12 or more hours per day are not  x subject to involuntary share time proposals, even though permitting such proposals might  X-arguably increase diversity. See 47 C.F.R.  73.561(b).  X-  x 11. Finally, we reject the petitioners' arguments that the pendency of the current  x-proceeding, coupled with the contingent conditions under which WBAU offered to relinquish its  xylicense, results in the license for WBAU still existing and being available for reassignment now  xLto entities wanting to share time with WHPC. WBAU's license was cancelled on June 12, 1996  xand its call sign deleted. If Five Towns and Friends wish to operate a radio station on the same"70*%%ZZ]"  xchannel as Nassau Community College, WHPC, they must follow our time sharing rules. Those  xrules provide that parties may file time sharing applications at any time, provided that the parties  xseeking to share time reach an agreement with the existing licensee. 47 C.F.R.  73.561(b). If  xFive Towns and/or Friends reach an agreement with Nassau Community College the staff could  xbegin to process it immediately. Otherwise, any time sharing application could be considered  X- xonly in the context of next year's license renewal application.) yO- xԍ See 47 C.F.R.  73.561(b) (if NCE station operates less than 12 hours per day, Commission will consider nonconsensual request for time sharing only in connection with renewal of station's license). As we have indicated previously,  xOthe Commission will not entertain time sharing requests that do not conform to these  X_- xrequirements. Westchester Council for Public Broadcasting, 8 FCC Rcd 2213, 2214 (1993)  x(upholding dismissal of sharetime request where the applicant did not indicate whether it  X1-attempted to reach an agreement with the existing licensee).   X -  ORDERING CLAUSES ă  X -  { x 12. Accordingly, IT IS ORDERED that the Application for Review of Friends of WBAU  xjand the Petition for Reconsideration of Five Towns College ARE DENIED. The staff's June 12,  x1996 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 x William F. Caton x Acting Secretary pX` hp x (#%'0*,.8135@8: