******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Federal Communications Commission Washington, D.C. 20554 In reply refer to: 1800B3-BSH May 6, 1998 Released: May 8, 1998 Dennis F. Begley, Esq. Reddy, Begley & McCormick 2175 K Street, N.W., Suite 350 Washington, D.C. 20037-1803 Edward W. Hummers, Jr., Esq. Holland & Knight 2100 Pennsylvania Ave., N.W., Suite 400 Washington, D.C. 20037-3202 John Griffith Johnson, Jr., Esq. Paul, Hastings, Janofsky &Walker LLP 1299 Pennsylvania Ave., N.W. Washington, D.C. 20004-2400 In re: WZNY(FM), Augusta, GA Assignment of License BALH-970917EG Dear Counsel: This letter is in reference to the above-captioned application to assign the license of WZNY(FM), Augusta, Georgia, from Richard L. Rhoden, Executor to Cumulus Licensing Corp. ("Cumulus"). On October 27, 1997, GHB of Augusta, Inc. ("GHB") filed a petition to deny this application. For the reasons stated below, we will grant the petition to deny, to the extent indicated herein, and dismiss the application as inadvertently accepted for filing. Background Cumulus is currently the licensee of four stations in the relevant market: WGUS(AM), North Augusta, Georgia; WEKL(FM), Augusta, Georgia; WRXR-FM, Aiken, South Carolina; and WUUS(FM), Martinez, Georgia. On February 2, 1998, the Commission granted an assignment of license of WBBQ(AM) and WBBQ-FM from Savannah Valley Broadcasting Company to Cumulus (File Nos. BAL-970917EE and BALH-970917EF). Thus, grant of the above-captioned application would result in Cumulus having an attributable interest in seven radio broadcast stations, five in the same service (FM), in the market. In order to qualify for ownership of five same-service FM stations in the relevant market, the applicant must demonstrate that there are forty-five or more commercial stations in that market. See 47 C.F.R. Section 73.3555(a)(1)(i). Assignee's Exhibit 3 to the above-referenced application indicates that there are forty-five stations in the relevant market. The petitioner argues that there are fewer than forty-five stations in the relevant market because Cumulus incorrectly counted silent stations WKRU(AM), Burnetttown, South Carolina, and WLOV(AM), Washington, Georgia, as well as WYFA(FM), Waynesboro, Georgia, which is licensed as a noncommercial educational station, to reach its claimed total of forty-five stations. Inclusion of silent and noncommercial educational stations, GHB contends, is in contravention of the Commission directive in Order, Implementation of Sections 202(a) and 202(b)(1) of the Telecommunications Act of 1996, 11 FCC Rcd 12368, 12370 (1996) (only operating commercial full- power stations, including daytimers and foreign stations, determine the number of stations in the market). Cumulus does not challenge GHB's assertions in the opposition pleading. Rather, Cumulus argues that the Commission should accept an alternative means to demonstrate compliance with Section 73.3555. To this end, Cumulus has filed a supplemental technical exhibit which applies the "Longley-Rice" FM radio broadcast station signal propagation calculation methodology, published as Technical Note 101 ("Tech Note 101"). Based upon the Tech Note 101 calculations, Cumulus claims that an additional three stations - none of which were included in the engineering exhibit submitted with the original assignment application - intersect the principal community contour of WZNY(FM), and therefore must be counted in the relevant market. The three stations added in the supplemental exhibit are: WPEH(FM), Louisville, Georgia; WCOS(FM), Columbia, South Carolina; and WQZY(FM), Dublin, Georgia. Cumulus notes that the only reported case involving the application of Tech Note 101 calculations in a multiple ownership context is Letter to Lee W. Shubert, 10 FCC Rcd 3159 (Chief, Audio Services Division, Mass Media Bureau, 1995) ("Shubert"). In that case, Commission staff rejected a petitioner's attempt to apply (Longley-Rice) Tech Note 101 calculations in order to disqualify an assignment application that had demonstrated compliance with 47 C.F.R. Section 73.3555 using standard calculation methods. Cumulus distinguishes Shubert by noting that, in the instant case, the applicant, rather than a petitioner, has employed Tech Note 101 calculations to defend an application after a petitioner has challenged the application. Cumulus concludes, therefore, that Shubert does not preclude an applicant from employing Tech Note 101 calculations. GHB counters that use of Tech Note 101 calculations in multiple ownership analyses are never appropriate, especially not in the instant case, in light of the holding in Shubert. Discussion The radio contour overlap rule provides that, for multiple ownership analyses, the principal community contour utilized for FM stations is the predicted 3.16 mV/m contour, computed in accordance with Section 73.313. 47 C.F.R. Section 73.3555(a)(4)(i). Section 73.313(e) provides that when anomalous terrain conditions exist near the antenna site, a Tech Note 101 showing may be submitted to supplement a conventional showing that conforms to the standard contour prediction methods prescribed in Section 73.313. The Commission has not previously ruled on the acceptability of Tech Note 101 calculations in the context of showings submitted by applicants to demonstrate compliance with the multiple ownership rules for a proposed assignment or transfer. Putting aside this broad question, we note that Cumulus has submitted Tech Note 101 showings for only three stations in its effort to establish a forty-five station market. Cumulus has failed to address which other stations in the relevant market qualify for use of a supplemental analysis and to present Tech Note 101 calculations for those stations. We reject such selective application of Tech Note 101 in the multiple ownership context. Just as the Tech Note 101 showings may indicate that stations WPEH(FM), WCOS(FM) and WQZY(FM) in fact should be included in the relevant market, submission of similar showings for other stations might show that they should not be included. Thus, permitting selective use of Tech Note 101 showings in the multiple ownership context would invite protracted disputes where contradictory results could occur depending on which FM station contours opposing parties predicted with Tech Note 101 calculations. In light of the above, we will not accept Cumulus' Tech Note 101 showing to supplement its multiple ownership exhibit. Therefore, the application to assign station WZNY(FM) fails to demonstrate compliance with Section 73.3555(a)(1)(i) of our rules, and will be dismissed as inadvertently accepted for filing. Conclusion Accordingly, the October 27, 1997 petition to deny the assignment of license of station WZNY(FM), Augusta, Georgia, IS GRANTED, TO THE EXTENT INDICATED HEREIN, and the application to assign WZNY(FM), Augusta, Georgia, from Richard L. Rhoden, Executor to Cumulus (File No. BALH-970917EG) IS HEREBY DISMISSED AS INADVERTENTLY ACCEPTED FOR FILING, pursuant to 47 C.F.R. Section 73.3566. Sincerely, Linda Blair, Chief Audio Services Division Mass Media Bureau