. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .In reply refer to:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1800B3-MFW

New Century Seattle Limited Partnership
190 Queen Anne Avenue N., #100
Seattle, Washington 98102

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .In re: K285AE, Olympia, Washington
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BRFT-950822YB (renewal)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BPFT-960111TD (modification)

Dear Licensee / Applicant:

This letter refers to the above-captioned applications of New Century Seattle License Partnership ("New Century") for: (1) renewal of the license of commercial FM translator station K285AE, Olympia, Washington; and (2) major modification of the station's technical facilities.

Station K285AE rebroadcasts the signal of co-owned primary station KJR-FM, Seattle, Washington. In response to Secton IV, Item 5(a) of its license renewal application, New Century represents that it is in compliance with 47 C.F.R. §74.1232(d) which prohibits the common ownership of a commercial primary station and an FM translator whose coverage contour extends beyond the protected contour of the primary station being rebroadcast. Engineering review of the instant proposals indicates that, notwithstanding this representation, Station K285AE's licensed coverage contour currently extends beyond the protected contour of primary station KJR-FM. Thus, the station's operation violates 47 C.F.R. §74.1232(d). This provision also indicates that a commercial FM translator station in operation prior to June 1, 1991 which is co-owned with the commercial FM station and whose coverage contour extends beyond the protected contour of the primary station, should have been divested prior to June 1, 1994. See also Notice of Inquiry, 3 FCC Rcd 3664 (1988); Report and Order, 5 FCC Rcd 7212 (1990); Memorandum Opinion and Order, 8 FCC Rcd 5093 (1993).

The instant major modification application does not cure this violation, as it merely proposes to change K285AE's operating frequency from Channel 285 to Channel 286 in order to eliminate interference to full-service FM station KJUN(FM), Eatonville, Washington. In fact, in its response to Section II, Item 12 of the major change application, New Century admits that the area to be served by the translator is not "entirely within the primary station's protected contour." See Footnote 1.

In light of New Century's ongoing violation of Section 74.1232(d), and because the modification application does not correct the violation, we cannot grant the K285AE renewal or modification applications. We will therefore hold the applications in abeyance for 60 days from the date of this letter to enable New Century to take steps to bring Station K285AE into compliance with Section 74.1232(d). These actions may include, but are not limited to, the filing of an amendment to the instant modification application changing the station's site or antenna pattern such that its coverage contour lies entirely within Station KJR-FM's protected contour, or the filing of an application to assign Station K285AE to an independent owner. Additionally, we hereby admonish New Century for failing to comply with Section 74.1232(d) by June 1, 1994. See Letter to Jeffrey D. Southmayd, Esq., reference 1800B4-AJS (Chief, Audio Services Division, Mass Media Bureau, September 11, 1996) (translator owner admonished for failure to comply with Section 74.1232(d) and action on renewal applications deferred for 60 days to enable the licensee to come into compliance with the rule).

Failure to take such measures within the specified time frame may result in the dismissal of the modification and renewal applications and the cancellation of station K285AE's operating authority. Our action here is without prejudice to whatever action, if any, the Commission later deems appropriate in light of the two-year violation of Section 74.1232(d).

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sincerely,

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Linda Blair, Chief
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Audio Services Division
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mass Media Bureau

Footnote:

Footnote 1: While the application does contain the general statement that the applicant requests that "any previous waivers granted to K285AE be extended to this request," our records contain no evidence of any previous waiver granted to Station K285AE. In any event, this general statement falls far short of the requirement that applicants plead with particularity the facts and circumstances which warrant waiver. Rio Grande Family Radio Fellowship, Inc. v. FCC, 406 F.2d 664, 666 (D.C. Cir. 1968).