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In re Application of VALLEY B/CASTING CO. (WYNS) Lehighton, Pennsylvania, Has:

1150kc, 1kw, DA-Day, Req: 1150kc, 5kw, DA-Day, For Construction Permit

 

11 Rad. Reg. 2d (P & F) 920

 

FCC 67-1287

 

December 8, 1967, Released, Adopted November 22, 1967

 


 

JUDGES: By the Commission: (Commissioner Lee concurring and issuing a statement in which Commissioner Johnson joins.)

 

OPINION:

 

   MEMORANDUM OPINION AND ORDER

 

By the Commission: (Commissioner Lee concurring and issuing a statement in which commissioner Johnson joins.)

 

1. The Commission has before it for consideration a petition for reconsideration, filed September 29, 1967, by Valley Broadcasting Company, directed against the Commission's action of August 30, 1967, returning the above captioned application as unacceptable for filing because of a failure to protect future Class II-A assignments in accordance with 1.569 of the Rules. In rejecting the proposal, the Commission also denied the applicant's request for waiver of the aforementioned rule. In requesting reconsideration, petitioner rendered its application together with the same engineering study previously

submitted.

 

2. Petitioner states that the original 1 kilowatt construction permit granted WYNS was based on predicted contours found in Figure M-3 of the Commission's Rules, but that field intensity measurement data submitted in 1962 with its application for license established a lower ground conductivity for the area. According to the petitioner, the proposed 5 kilowatt/.5 millivolt per meter contour would extend no further than the present 1 kilowatt/.5 millivolt per meter contour, providing the extent of the proposed contour is predicted on the basis of measured conductivity and the present operation is calculated on the basis of Figure M-3. Thus, petitioner concludes that the proposed power increase would not encroach on future Class II-A assignments any more than its original grant would have if the actual conductivity had proven to be as high as that predicted by M-3.

 

3. In Radio Newark, Inc., 2 FCC 2d 616, 6 RR 2d 897 (1966), Station WNRK made the same argument, contending that so long as a power increase extended its pertinent contours on a measured basis no further than the original construction permit would have on the basis of M-3 predictions, no prohibited overlap would occur. In that case we stated that an allocation system based on prohibited overlap of contours must necessarily determine the location of pertinent contours by the most accurate method available and that, where a conflict existed between the two methods, field intensity measurement data was to be preferred over the Figure M-3 map. We find the rationale in that case no less applicable here. Thus, the proposed enlargement of WYNS's service area would, in fact, result in greater prejudice to future Class II-A assignments.

 

4. The data and arguments submitted by petitioner are the same as those considered by the Commission when it first rejected the proposal and upon

reconsideration we can find no reason to reverse our previous ruling.

 

Accordingly, the petition for reconsideration is hereby denied.

 


 

CONCURBY: ROBERT E. LEE

 

   CONCURRING STATEMENT OF COMMISSIONER ROBERT E. LEE IN WHICH COMMISSIONER NICHOLAS JOHNSON JOINS

 

In concur in this action because it follows a procedure adopted by the Commission to preserve freedom for future clear-channel policy, enunciated in

Docket 6741. Report and Order in the Matter of Clear Broadcasting in The Standard Broadcast Band, 31 FCC 565 [21 RR 1801] (1961).

 

However, the freeze on application processing adopted in 1961 was to have been lifted in September 1964, by which time it was contemplated that we would be able to decide the "future use of the 12 Class I-A channels (now) left in status

quo."

 

Six years have passed, and the decision to which I dissented and the freeze which I lamented are no closer to a reconciliation with the public interest.

 

Our failure to resolve clear-channel policies and resume normal application processing has resulted in an unwarranted extension of this freeze for four additional years. The freeze has led to an appalling waste of manpower in both the industry's preparation of petitions for waiver and the Commission's staff in their analysis.

 

Worst, however, is the continued denial of primary service to areas currently without such service.

 


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