~70Federal Communicatio'ff/r:COmmission Reports
Construction Permit Issuance of
Translator FM
Section 74.1232(d)(1) of the Rules does not proscribe the authorization
of a commercial FM translator to the licensee of the primary station
proposing to provide service outside that station's 1 mV1m contour
and within the 1 mV1m contour of an unbuilt, non-operational
commercial FM broadcast station assigned to a different principal
community.
-Ber-Tec B/cing, Inc.
FCC 85-361
BEFORE THE
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
In re Application of
BER-TEe Broadcasting, Inc.
Gold Beach, Oregon
KURY Radio, Inc.
Gold Beach, Oregon
For Construction Permits for New FM Trans 
lator Stations
File Nos.
BPFT-800909IQ
BPFT-800421IC
MEMORANDUM OPINION AND ORDER
Adopted: July 9, 1985; Released: July 16, 1985
By THE COMMISSION: COMMISSIONER RIVERA NOT PARTICIPATING.
1. The Commission has before it for consideration: (a) the above 
captioned applications; (b) two Petitions to Deny by James N. Hoff, filed
November 25, 1980; (c) staff letters, dated January 19, and February 24,
1984, denying the petitions to deny and granting these applications; (d)
Petitions for Reconsideration by Chambers Broadcasting (Chambers),
filed February 21, and March 23, 1984; (e) two staff letters dated June 6,
1984; denying the petitions for reconsideration; (f) two Applications for
Review by Chambers, filed July 16, 1984; (g) an Opposition to Application
for Review by BER-TEC Broadcasting, Inc., (BER-TEC) filed July 23,
1984; and (h) related pleadings and correspondence. "
101 F.e.e. 2d
,;'.,
Ber-Tec B/cing, Inc.
571
2. KURY Radio, Inc. (KURY Radio) and BER-TEC each filed an
application for a new station-owned commercial FM translator to serve
Gold Beach, Oregon, by rebroadcasting, respectively, the signals of their
FM Broadcast Stations, KURY(FM), Brookings, Oregon, and KCRE-FM,
Crescent City, California. On November 25, 1980, James N. Hoff (Hoff),
who 'at that time had pending an application for a new first local
commercial FM broadcast,station at Gold Beach, Oregon (File No. BPH·
800723AH), filed against each translator application a petition to deny
alleging that its proposal violated Section 74.1232(d)(1) of the Commission
Rules.! Hoffs FM broadcast station application was granted on January
27, 1981, and assigned the call sign KGBR(FM). Station KGBR(FM) still
was not operational on January 19, and February 24, 1984, the dates of
the staff's actions disposing of Hoff's petitions to deny these translator
applications.
2
The staff concluded that the proscription in Section
74.1232(d)(1) of the Rules does not apply where the proposed station 
owned FM translator is intended to provide reception within the predicted
1 mV1m contour of an unbuilt, non-operational commercial FM broadcast
station. Thus, upon a finding that although Gold Beach, Oregon is outside
the respective 1 mV1m contours of Stations KURY(FM) and KCRE-FM, it
is not within the 1 mV1m contour of any operational commercial FM
broadcast station, Hoff's petitions to deny were denied and the captioned
translator applications were granted.
3. The construction permit for Station KGBR(FM) was assigned from
Hoff to Chambers on February 8, 1983. Chambers petitioned for reconsid 
eration of the staff's actions, alleging that although Station KGBR(FM)
was not operational, the grant of these translator applications neverthe 
less contravened Section 74.1232(d)(1) of the Rules.
3
Reconsideration was
denied on the ground that Chambers neither presented any new substan 
tial or persuasive arguments which were not previously considered, nor
I Section 74.1232(d) provides that "An authorization for a commercial FM translator which
is intended to provide reception to places which are beyond the predicted 1 mV1m field
strength contour of the primary station and within the predicted 1 mV1m field field
strength contour of another commercial FM radio broadcast station assigned to a
different principal community will not be granted to: (1) The licensee or permittee of an
FM broadcast station.... " [Emphasis added.]
2 Station KGBR(FM) is still not operational. A sixth request for extension of time to
construct the station was filed May 15, 1985 (BMPH-850515IA).
3 Since Station KGBR(FM) would compete for audience in Gold Beach, Oregon with these
translator stations, and could suffer economic injury to the extent that audience is
diverted, Chambers, as Hoffs successor-in-interest, had standing to petition for reconsid 
eration of the staffs actions granting these applications, and has standing to file these
applications for review. See Federal Communications Commission v. Sanders Broth 
ers Radio Station, 309 U.S. 470 (1940); Sections 1.106 and 1.115 of the Commission's
Rules.
101 F.C.C. 2d
572 FederalCommu!l!~atipnsCommission Reports
demonstrated any errors in the analysis of the facts or the "authority
supporting the staff's actions. See Section 1.106(a)(1) of the Rules.
4. In its application for review, Chambers requests consideration of
whether the protection afforded licensees of commercial FM broadcast
stations in Section 74.1232(d)(1) of our Rules extends to permittees of
commercial FM stations which are authorized but not operational prior to
the authorization of a station-owned FM translator. Chambers asserts
that due to the size of the GoldBeac~market, the intrusion of even one of
these translators, which Chambers claims do not place 1 mV1m signals
over the entire community, makes untenable the competitive position of
Station KGBR(FM).4 Chambers alleges that the authorization of these
translators is contrary to the Commission's FM allocation policy of
bringing full local aural service to all communities, and that there is no
rational basis for not affording the permittee of a commercial FM station
the same right to protection from interference to its proposed contours
from a later-authorized FM translator as is accorded licensees.
5
Chambers
takes the position that the termination provision in Section 74.1232(h) of
our Rules does not adequately guard the viability of the initiation of a
first local FM station against economic harm by an FM translator.
6
Finally, Chambers asserts that the -authorization of these translators
thwarts the Commission's public interest policy of obligating full service
station licensees to serve their communities' needs and, instead, encour 
ages regional concentration of control.
5. At the outset, we affirm that the term "FM radio broadcast station"
in Section 74.1232(d) of our Rules,7 encompasses only operational, and not
unbuilt, stations. Accordingly, Section 74.1232(d)(1) proscribes the autho 
rization of a commercial FM translator to the proposed primary station
licensee or permittee only where the translator is intended to provide
reception beyond the primary station's predicted 1 mV1m contour and
within the predicted 1 mV1m contour of an operational commercial FM
4 We note that the Commission's Rules, 47 U.S.C. Sections 74.1201-.1284, do not prescribe
minimum coverage requirements for FM translators, and that the extent to which these
translators actually cover Gold Beach, Oregon is irrelevant to the issue herein.
5 We note that Chambers claims, without evidentiary support, that there would be
interference to Station KGBR(FM)'s signal from these translators pending their
termination. Allegations concerning interference to a primary signal are irrelevant to the
eligibility of a translator applicant under Section 74.1232(d) of the Rules. See Section
74.1203 of the Rules.
6 Section 74.1232(h) provides that "Any authorization for an FM translator station issued
to an applicant described in paragraph (d) of this section will be issued subject to the
condition that it may be terminated at any time, upon not less than 60 days written notice,
where the circumstances in the community or area served are so altered as to have
prohibited grant of the application had such circumstances existed at the time of its
filing."
7 See footnote one, emphasis added.
101 F.e.e. 2d
Ber-Tec Bleing, Inc. 573
broadcast station assigned to a different principal community.s
6. Section 74.1232(d)(1) was incorporated into our FM translator rules
in its current form at the time Part 74 was amended to include Subpart L.
The underlying rationale for its inclusion was to prevent FM station
licensees from using FM translators as a competitive means for extending
their stations' service areas. Report and Order in Docket 17159, 20 RR 2d
1538, 1541 (1970). In recognition of the fact that FM translators are not
being used primarily as "fill-in" devices or as means to provide service to
unserved or underserved areas, we have twice explored amending Section
74.1232(d) in order to prevent unfair competition by distant commercial
FM stations. In our Notice ofProposed Rulemaking in Docket 19918, 44
FCC 2d 794 (1974), we proposed to prohibit competitive expansion of an
FM station's service area through either a licensee or non-licensee owned
translator where the area to be served was within the predicted 1 mV1m
contours of more than one FM station licensed to a community other than
. that of the primary station. Our main concern was to balance the need to
protect the viability of local FM stations with Congress' intent that there
be competition in the business of broadcasting. Id. at 795. In 1978, we
revised our proposal in Docket 19918 to limit primary stations to owning
and supporting translators which serve areas only within their 1 mV1m
contours, and to permit all other applicants to establish FM translators
without restriction as to their intrusion into the predicted 1 mV1m
contours of full service commercial FM stations. Memorandum Opinion
and Order and Further Notice of Proposed Rulemaking in Docket
19918, 43 FR 14695, published April 7, 1978.
7. Consideration of this revised proposal was ultimately concluded last
year. Upon review of the record, we determined that our present
limitations on FM station-licensee translator ownership and control are
adequate. Thus, we declined to amend Section 74.1232(d) and left the rule
intact in its current and original form. Amendment ofPart 7.4, Subpart L
ofthe Commission's Rules Pertaining to FMRadio Broadcast Transla 
tor Stations, 98 FCC 2d 35 (1984). Chambers argues, however, that our
policy limiting the protection in Section 74.1232(d)(1) only to licensees of
operational commercial FM broadcast stations will result in competitive
economic clashes between first-in-time station-owned translators and
subsequent first local FM service stations that will adversely affect the
8 We note that in its reply to BER-TEC's opposition to application for review, Chambers
argues that "the restrictions of the rule [Section 74.1232(d)(1)] apply wherever predicted
service exists, not only where an FM station is in actual operation." [Emphasis in
original]. The word "predicted" as used in Section 74.l232(d) is a technical term of art
referring to an operating FM station's theoretically predicted contours calculated on the
basis of its authorized power and antenna height, as opposed to its actual field strength
measurements. The language does not refer to a distinction between an operational and a
non-operational station.
101 F.C.C. 2d
574 Federal Communications Commission Reports
viability of the latter stations. Weare unpersuaded by this argument.
Subpart (h) of Section 74.1232 was proposed in Docket 19918 to provide
for retroactive application of subpart (d) "where the circumstances in the
community or area served are so altered as to have prohibited grant of the
application had such circumstances existed at the time of its filing." In the
Notice proposing Docket 19918, we set forth an example of a possible
future application of subpart (h) which clarifies the applicability of Section
74.1232(d)(1). We referred to a situation where, subsequent to the
authorization of a station-owned FM translator serving an area beyond
the primary station's predicted 1 mV1m contour more than one FM station
commen"ces operation in the latter community.9 Subpart (h) may be
invoked when a full service station licensed to the community being
served by a translator begins operation. Therefore, the unbuilt, non 
operational status of an FM station does not prohibit authorization of a
translator to an applicant described in subpart (d). .
8. The explication of this policy in Peninsula Communications, Inc.,
50 RR 2d 1135, 1136 (1982), demonstrates the interrelationship of subparts
(d) and (h) of Section 74.1232. An FM station petitioned to terminate the
operation of an FM translator owned by the licensee of the FM station
being rebroadcast beyond its 1 mV1m contour. We stated that authoriza 
tion of the translator issued to an applicant described in Section 74.1232(d)
of the Rules "came within the purview of the termination provision of
Section 74.1232(h) as soon as ... [the full service FM broadcast station
licensed to the community being served by the translator] comme1lced
operation." [Emphasis added]. We explained that "Section 74.1232(h) of
the rules is permissive in nature and, therefore allows, but does not
require, termination of a translator upon a proper showing that the
competitive situation in a market is such that the translator is likely to
spell the demise of a local full service FM station," and held that "the
station's current status as an operating station is some evidence of its
ability to survive." Id. at 1136-1137.
9. Chambers argues that the burden of tbe 6o-day termination
provision notice period, and the costs incurred in petitioning for termina 
tion of these translators after Station KGBR(FM) commences operation,
would be sufficiently detrimental as to effectively preclude the initiation
of this local service. However, applicants for new broadcast stations, as
well as assignors of construction permits for unbuilt stations, certify that
they have available sufficient net liquid assets to construct and operate
the facility for three months without revenue. The additional costs of
petitioning for termination of a translator are unlikely to impose a
9 The reference to "more than one" FM station in this example parallels the proposal in
Docket 19918 (discussed above) to amend Section 74.1232(d).
101 F.e.e. 2d
Ber-Tec Blcing, Inc. 575
financial hardship sufficient to threaten the viability of a new station even
in a small market.
10. Additionally, Chambers alleges that our policy "runs contrary to
the theory of preference of a primary signal to a community over a
secondary signaL" It cities Harriscope Broadcasting Corporation, 38
FCC 2d 328 (1972), for the proposition that it is within the Commission's
discretion to review the impact of a translator's operation on the operation
of a full service station, and thus there is no assurance in the present case
that the protection in Section 74.1232(d)(I) will ultimately be accorded
Station KGBR(FM).10 However, review of a petition for termination is not
permissive. Rather, Harriscope Broadcasting and Peninsula Communi 
cations both make clear that upon review of changed circumstances,
which, had they existed at the time the translator application was filed
would have prohibited a grant, the Commission may determine that
termination of the translator is not in the public interest. In Harriscope
Broadcasting we concluded that the viability of the new local UHF-TV
station could be ensured by protecting its programs against duplication by
the TV translators serving the same community, and that the public
interest in the availability of a wide choice of programs warranted
maintaining the translators' authorizations. Thus, where translator ser 
vice in a community preceeds the initiation of a first local FM service,
there is an opportunity to assess whether there is a detrimental impact by
the translator on the viability of the newcomer FM facility, or whether
these stations can competitively co-exist, making available to the public a
wider diversity of voices.
11. It is clear that the circumstances of this case do not activate the
protection of Section 74.1232(d)(I). Not only was Station KGBR(FM) not
operational at the time these translator applications were filed, but
contrary to Chambers' representation in its applications for review, the
construction permit for that station had not even been granted. Station
KGBR(FM) has been authorized since January, 1981, and to this date,
remains unbuilt and non-operational. The public interest is best served by
permitting FM translator service beyond these primary stations' 1 mV1m
contours by the station licensees pending the eventual commencement of
operations by Station KGBR(FM).
12. In this regard, and in conclusion, we are unpersuaded by Cham 
bers' argument that our policy for applying the proscription in Section
74.1232(d)(1) of our Rules eschews our policies against regional concentra 
tion of control. We note first that we recently repealed the regional
concentration of control provisions of the multiple ownership rules. See
10 Harriscope Broadcasting involved the application of Section 74.732(f) of the Rules,
which is the termination provision for TV translator stations. Section 74.1232(h) parallels
Section 74.732(f).
101 F.e.e. 2d
576 Federal Communications Commission Reports
Multiple Ownership (Regional Concentration of Control Provision), 96
FCC 2d 578, 55 RR 2d 1389 (1984). Secondly, Section 74.1232(b) specifically
provides that FM translators do not count for purposes of our multiple
ownership rules. We reiterate that we believe that our policy best serves
the public interest in aural FM broadcast service, our policy best serves
the public interest in aural FM broadcast service, and conclude that
retroactive application of Section 74.1232(d)(1) via Section 74. 1232(h),
where there is evidence of a detrimental impact by the translator on the
new local FM facility, sufficiently guards against any threat of regional
concentration of control or economic competition injurious to the public
interest.
13. Accordingly, IT IS ORDERED, that the aforementioned Applica 
tions for Review by Chambers Broadcasting ARE HEREBY DENIED.
FEDERAL COMMUNICATIONS COMMISSION
WILLIAM J. TRICARICO, Secretary