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Commission Denies Petition for Reconsideration from Alaska FM to Class C3 Upgrade

Alaska, the “Last Frontier” for Class D FMs

Class D FMs, those 10 watt educational stations often licensed to colleges and universities, began to disappear in 1978. Citing the opinion that they were impeding the development of full-service facilities, the commission decided it would no longer authorize Class D FMs, and adopted restrictions on modifying existing Class D stations, which were codified as Section 73.512. The exception to most of these rules is Alaska. A recent decision by the FCC to deny Big River Public Broadcasting’s Petition for Reconsideration recalls the logic behind some of the Class D regulations that are unique to The Last Frontier.

Big River Broadcasting’s KIYU(FM), a Class D NCE station located in Galena, Alaska, and licensed to operate at 10 watts on Channel 201, proposed to upgrade the facilities of the station to Class C3 and operate at 1,000 watts. On March 31, 2017, the Media Bureau dismissed the application because it proposed a major change to the licensed facilities of the station outside of a filing window in violation of Section 73.3573(e)(2) of the FCC’s Rules.

Big River responded by filing a Petition for Reconsideration. In it, they argued that the bureau erred in dismissing the application because it failed to consider that Section 73.512(c) of rules provides that Class D stations in Alaska may file major change applications at any time, and thus the restrictions of Section 73.3573(e)(2) are not applicable to those stations. Big River also cited instances where the bureau has accepted and granted Big River’s applications for new Class D stations and a major change application for an existing Class D station, all of which were filed outside of an NCE filing window. Thus, Big River argued that its application to upgrade the facilities of the station is subject to the same Alaskan Class D exception and should be reinstated.

The commission will consider a petition for reconsideration only when the petitioner shows either a material error in the commission’s original order, or raises new facts or changed circumstances not known or existing at the time of the petitioner’s last opportunity to present such matters.

It was determined by the commission that the restrictions set forth in Section 73.512 would not apply to stations located in Alaska. In explaining its ruling the commission stated that “10-watt operations can be accommodated [in Alaska] without great harm. In fact, they seem well designed to serve the small and often isolated settlements of that state.” The commission further noted, however that “if facts change as to spectrum crowding in Alaska, we can take such additional steps as later prove to be needed.”

In rejecting Big River’s interpretation of Section 73.512(c), the commission responded, “Nothing in the NCE Second R&O indicates that the commission intended for the narrow exception outlined in Section 73.512(c) to be used as a means to circumvent the Section 73.3573(e)(2) requirement that applications for new primary NCE stations be submitted only during filing windows, which is what Big River proposes. This exception is based precisely on the commission’s reasoning that ‘10-watt operations can be accommodated’ in Alaska without impeding the development of full-service NCE stations. Allowing Big River’s proposed 1,000 watt operation would eviscerate this limited exception and could lead to the spectrum crowding the commission warned would warrant future action. Additionally, the text of Section 73.512(c) shows that the commission intended for the limited Alaskan exception to apply only to secondary service stations. The rule provides that upon the grant of a new Class D application or a major change application by an existing Class D station, ‘The station shall become a Class D (secondary) station.’ Grant of the application in this instance would result in the station no longer being a Class D station.”

Lastly, the commission noted that Big River cited no cases, “and we are not aware of any, where the exception made in Section 73.512(c) for major change applications by Alaskan Class D licensees has been expanded to include requests to upgrade to a higher class of station. Applications for new NCE Class C3 stations in Alaska are still subject to the comparative process for new NCE stations adopted by the commission, and we reject Big River’s request that we accept its misinterpretation of Section 73.512(c) to circumvent this process.”