In Re Application of WPVL, INC. (WPVL), PAINESVILLE, OHIO Has: 1460 kc., 1 kw., DA-Day Requests:
1460 kc., 500 w., 1 kw.-LS, DA-2, U For Construction Permit
FEDERAL COMMUNICATIONS COMMISSION
23 F.C.C.2d 964
RELEASE-NUMBER: FCC 70-655
June 26, 1970 Released;
Adopted June 24, 1970
[*964] 1. The Commission has before it for consideration the above captioned application with a request for waiver of section 73.24 (b)(3)(ii) of the Commission's rules.
2. Painesville, Ohio, is approximately 25 miles from the center of Cleveland and, according to the 1960 census, has a population of 16,116 persons and is within the Cleveland urbanized area. According to the applicant, Painesville is an independent city, with its own government, city manager, newspaper, public utilities and colleges. It is also the county seat of Lake County, Ohio. On the basis of measurement data submitted by the applicant, Painesville receives no nighttime standard broadcast service from Cleveland. In fact, Painesville's only AM nighttime service comes from 100 miles away in Detroit, Michigan. Because of the Detroit service, however, the applicant's request for local nighttime operation fails to comply with section 73.24(b)(3)(ii) of the Commission's rules. This section requires that a new nighttime operation be authorized only if the applicant [**2] will provide a first primary AM service to at least 25 percent of the area or population within the proposed interference-free nighttime service area.
3. The above rule was adopted in 1964 n1 when the Commission instituted its "go-no go" policy for acceptance of AM applications requesting new or major changed facilities. This meant that an application was acceptable for filing only if it strictly complied with the Commission's prohibited overlap rules for daytime operation and "unserved area" service standards for nighttime operation. This policy has [*965] been strictly enforced n2 and only under special, unique or extraordinary circumstances have the nighttime "unserved area" requirements of section 73.24(b)(3)(ii) been waived. n3 Each new signal added to the AM band tends to cause some increased interference, n4 and in light of the Commission's view that FM is becoming as viable an aural medium as AM, the Commission has proposed more stringent AM allocation standards. n5
n1 See the Commission's Report and Order adopted July 1, 1964 (FCC 64-609, 29 FR 9492, 2 RR 2d 1658) in Docket No. 15084.
n2 E.g., Major Market Stations, Inc., 4 RR 2d 650 (1965).
n3 E.g., Kauai Broadcasting Co. (KTOH), 9 RR 2d 1184 (1967); Newcastle Broadcasting Corporation, 6 RR 2d 443 (1965).
n4 Commission's Report and Order, 2 RR 1658, 1671 (1964).
n5 In our Notice of Proposed Rule Making in Docket No. 18651, FCC 69-690, 17 RR 2d 1524, released September 11, 1969, which proposes revisions in the AM rules, we do not undertake to remove any of the present restrictions on the commencement of new AM nighttime facilities, but, rather, we propose to add two new standards by which we may evaluate applications: 1) the definition of a first primary service will depend upon existing FM as well as AM services; 2) the availability of an FM channel will render new applications unacceptable for filing. [**3]
4. The applicant's petition for a waiver of the nighttime "unserved area" rule is based primarily upon the following established facts: 1) Painesville is presently without nighttime AM broadcast service except for station WJR, 100 miles away, in Detroit, Michigan (the applicant contends that this station does not program to the needs of the Painesville community); 2) the applicant's proposal will serve 75.3 percent of the population within its normally protected contour; and 3) the unavailability of a local FM channel precludes the possible substitution of local FM for AM nighttime service. Premised on the foregoing facts, the applicant contends that Commission precedent requires a grant of its waiver request.
5. Painesville, Ohio, is presently served at night by five (5) FM stations n6 located in Cleveland. Although our proposed rules would require that the applicant also take account of FM service in defining an "unserved" area or population, only one AM service from Detroit, 100 miles away, precludes the present proposal from serving the requisite amount of "unserved" area or population under our prefreeze rules. In addition, and as noted above, there are several individual [**4] factors which combine to reflect a particularly unique fact situation: 1) the center of Painesville, although within the Cleveland urbanized area, is approximately 25 miles from the center of Cleveland; 2) no AM station in Cleveland renders primary service to Painesville; 3) the one nighttime AM service from Detroit is not a sufficient substitute for a local service; n7 and 4) no FM channel can be assigned to Painesville. Although none of the above factors would individually merit a waiver of our rules, collectively they represent an exceptionally unique fact situation.
n6 One other FM station gives partial coverage to Painesville.
n7 Although the relative importance of first local outlets is minimized in our Notice of Proposed Rule Making, it would still be an important factor to be considered in individual cases.
6. In view of the foregoing, IT IS ORDERED, that WPVL, Inc.'s request for waiver of section 73.24(b)(3)(ii) of the Commission's rules, to permit the acceptance of the above-captioned application for filing, IS GRANTED.
[*966] 7. IT IS FURTHER ORDERED, that the above-captioned WPVL, Inc., construction permit application IS ACCEPTED for filing.
FEDERAL COMMUNICATIONS [**5] COMMISSION, BEN F. WAPLE, Secretary.
DISSENT OF COMMISSIONER KENNETH A. COX IN WHICH COMMISSIONERS NICHOLAS JOHNSON AND H. REX LEE JOIN
I dissent. This nighttime service will cause further interference on the frequency. Applicant now provides Painesville with a daytime local service, and the community receives primary nighttime service from a clear channel station in Detroit -- which, under our rules, bars acceptance of this application. In addition, while not providing primary service under our rules, a number of AM stations in Cleveland deliver usable nighttime signals in Painesville. In addition, five Cleveland FM stations provide primary service to that community at night. Under our proposed rules, which take greater account of FM service, the presence of even one of these signals would require rejection of the application involved here. I am not persuaded by the majority's efforts to pile one small fact on top of another to justify this waiver. They have, again, disregarded basic allocation policy simply because they think Painesville should have a local nighttime outlet. I think this can only lead to further requests for waiver and further damage to our allocation [**6] policies.