This document was originally prepared in Word Perfect 5.1. If the original document contained footnotes or special formatting, such as boldface or italics, that information is missing from the on-line ASCII version. The document format (spacing, margins, tabs, etc.) may be changed too. If you need the complete document, the Word Perfect version will be available for downloading by May 1.

                     WASHINGTON, D.C.  20554





                                        In Reply Refer to:
                                                  1800B2-KMS               
                                   
David Tillotson, Esq. 
3421 M Street, NW
Washington, DC  20007


                         In re:    WTDK(FM), Federalsburg, MD
                                Apex Associates, Inc.
                                File No. BMLH-950811KA 
                                Request for Waiver of 47 C.F.R.
                                Section 73.1125   

Dear Counsel:

     This refers to the request dated August 11, 1995, filed on behalf of
Apex Associates, Inc. ("Apex"), that the Commission waive its main studio
rule, 47 C.F.R. Sec. 73.1125,  in order to permit station WTDK(FM),
Federalsburg, Maryland to collocate its main studio with commonly owned
station FM station WAAI, Hurlock, Maryland, which location is outside of
WTDK(FM)'s  principal community contour.

      In support of the instant request, Apex asserts that collocation of the
stations' main studios is desirable because it will enhance WTDK(FM)'s
financial position; that it will improve public access to the WTDK(FM) studio,
which it asserts is currently difficult;  and that the proposed studio affords
superior programming capabilities as compared to the facilities presently
utilized by WTDK(FM).   Apex further notes that the proposed studio is closer
to the community of license than other sites you would be allowed to relocate
to without seeking waiver of the rules.  If the waiver is granted, Apex
further indicates that financial resources currently utilized to offset losses
incurred by WTDK(FM) in maintaining its separate main studio could potentially
be used to bolster the stations' local programming.

      The purpose of the main studio rule is to ensure that broadcast stations
fulfill their obligation to meet the needs and interests of the residents of
the community of license.  See Main Studio and Program Origination Rules for
Radio and Televsion Broadcast Stations ("Report and Order"), 2 FCC Rcd 3215,
3217-18 (1987), mod. in part, 3 FCC Rcd 5024 (1988).  The Commission found
that allowing a station to locate its main studio outside the community of
license but within the principal community contour would achieve this goal,
while also providing additional flexibility to the station.  The main studio
rule allows an AM station to locate its main studio outside the station's
principal community contour only if good cause for doing so exists and to do
so would serve the public interest.  See 47 C.F.R. Sec. 73.1125(a)(4).  In the
Report and Order, supra, the Commission noted that the additional flexibility
given to stations to decide where to locate their main studio would also
decrease the number of waiver requests, reducing administrative costs.  2 FCC
Rcd at 3218.  In order to justify a waiver of the main studio rule, applicants
must show: (i) that there are no suitable studio locations anywhere within the
station's principal community contour; and (ii) that a waiver would serve the
public interest.

      We believe that the circumstances presented here do not warrant a waiver
of the rule.  The Report and Order, supra, amended the main studio rule to
accord greater flexibility to broadcast licensees, requiring that the main
studio be located within the primary reception area in order to ensure
"[e]xposure to daily community activities and other local media of
communication ... ." 2 FCC Rcd at 3218.  In order to justify a waiver,
applicants must clearly demonstrate :  (i) that there are no suitable studio
locations anywhere within the station's principal  community contour; and (ii)
that allowing such operation at variance with the Commission's relaxed studio
standards advance the public interest.  The Commission has held that, in the
absence of a detailed showing of such special circumstances, it is contrary to
our policy to authorize the relocation of the main studio of a broadcast
station to a point outside the principal community contour.  See, e.g., Maines
Broadcasting, Inc., 8 FCC Rcd 5501 (1993); WAVY Television, Inc., 102 FCC 2d
1538 (1985).

       In its waiver showing, Apex admits that suitable sites are likely
available within WTDK(FM)'s principal community contour.  It also concedes
that it is "strong enough" to continue to cover the asserted ongoing losses
associated with WTDK(FM), as it has done in the past.  Even assuming,
arguendo, that WTDK(FM)'s present main studio is less accessible to the public
than an alternative site due to the quality of its access roads, that factor
does not justify waiver of the rule, where, as here, no showing has been made
that all suitable sites are unavailable within the principal community
contour.   Similarly, Apex has identified no policy or precedent supporting
justification for waiver on the basis that, in the present case, relocation
without waiver may be made to a point somewhat more distant to the community
of license than the proposed site.  See WAIT Radio v. FCC, 418 F.2d 1153 (D.C.
Cir. 1969)( burden of justifying waiver squarely on proponent of waiver).  Nor
has Apex identified any "compelling reason," which, independently, warrants
waiver in the instant case.  In this connection, Apex has not demonstrated how
any private benefit that would accrue to it through the collocation of the
main studio, and the attendent cost savings, would translate into a tangible
benefit to the Federalsburg public sufficient to justify a waiver. 

      We thus conclude that allowing WTDK(FM) to collocate its main studio
with WAAI at a point outside its principal community contour would contravene
the policies of the Report and Order.  In view of the above, Apex's request
for waiver of 47 C.F.R. Sec. 73.1125 is, in all respects, DENIED.



                                    Sincerely,


                                    Linda Blair, Acting Chief
                                    Audio Services Division
                                    Mass Media Bureau



      

Return to the Audio Services Division screen

Return to the Mass Media Bureau screen

FCC Home Page