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.