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NPR Loses Appeal in EMF Translator Case

FCC decision involved challenge to U/D signal strength methodology

The Media Bureau of the Federal Communications Commission has turned down a six-year-old petition from NPR in a case involving an FM translator in Indiana.

It’s a win for the Educational Media Foundation. It also is notable because the commission staff did two things in issuing this ruling: It declined an opportunity to revisit a signal strength methodology that is commonly used to predict interference in certain cases; and it turned down an argument from NPR that the organization should be allowed to come in late and still comment in a given proceeding thanks to its nature as an NCE membership organization.

The background:

The case involves an application by EMF for a translator in New Albany, Ind. This was granted by the FCC even though the 100 dBu interfering contour of the translator lies entirely within the 60 dBu protected contour of WFPL(FM) in Louisville, Ky., a Kentucky Public Radio station on a second-adjacent channel.

According to the rules, a translator application cannot be accepted if its interfering contour would overlap the protected contour of an existing full-service FM; but the rules allow an exception if the proponent can show that no interference would occur due to terrain or lack of population. EMF had argued that the prediction methodology called undesired-to-desired (U/D) signal strength ratio indicated that the area of interference would be tiny and contained no people.

The methodology has been used by the FCC in other cases; interference is predicted to occur between stations operating on second-adjacent channels in areas where the “undesired” or “interfering” signal is at least 40 dB greater than the “desired” or “protected” signal.

Kentucky Public Radio had argued against the translator, saying it would result in prohibited contour overlap. But the FCC staff allowed EMF’s translator, saying it routinely accepts translator apps using this methodology. The FCC itself calculated that interference would happen only in a very small, unpopulated area near the transmitter.

KPR then appealed, saying that by utilizing the methodology, the FCC had improperly changed a commission rule and that the methodology is “technically flawed” and “unreliable inside a station’s protected service (60 dBu) contour at the high signal levels involved in this case.”

The commission in turn rejected that, noting it had already considered and approved the practice in a case called Living Way Ministries. It also rejected the station’s argument that the U/D signal strength ratio methodology was flawed, and said that in certain cases such as the modification of “grandfathered” short-spaced FMs, the FCC actually has required the use of the methodology. “Given the power disparity between EMF’s proposed 10-Watt translator facility and WFPL(FM)’s 21 kW operation and the proximity of the stations’ transmitter sites — they are separated by only 1.2 kilometers — the commission stated its belief that the ‘flaw’ identified by KPR would not be manifested. It stated that the signal strength ratio methodology, in fact, would provide a more accurate prediction of the likely interference area in this case than a strict application of the contour overlap standard.”

NPR then asked the commission to reconsider; it was on NPR’s 2004 petition that the FCC ruled this week.

NPR had already questioned the Living Way decision, and now told the FCC that it was wrong to apply the methodology without deciding that other appeal. It also said the FCC analysis was flawed and that the decision in the EMF translator case had improperly modified the rules without a comment period.

But the FCC this week sided with EMF.

It said NPR should have participated earlier if it wanted to be a party to the translator case, and it rejected NPR’s argument that it has “associational standing” as a membership organization representing many noncom stations with an interest in this matter. (Another part of NPR’s argument was that “as a producer of news, cultural and informational programming broadcast over public radio stations nationwide, including WFPL(FM), NPR is adversely affected by the commission’s decision to the extent it will impair the public’s ability to receive NPR-produced and distributed programming.”)

NPR also argued that it hadn’t participated earlier because it could not have anticipated the FCC’s application of the Living Way case while its own appeal was pending, and it could not have anticipated that the FCC would unilaterally adopt a U/D signal strength ratio methodology in lieu of the more rigorous standard in the rules.

But the FCC now says that NPR’s reliance on the doctrine of “associational standing” to avoid part of the rules is misplaced: “Although NPR may have had standing to participate in this application proceeding, that fact is simply not relevant in determining whether it has impermissibly sat on its rights. Its claimed inability to foresee future commission actions also is not an adequate justification for its failure to participate in the earlier stages of this proceeding.”

And even had NPR enjoyed “standing” in the translator case, the Media Bureau said, the FCC would have dismissed the petition because NPR presented no new evidence in its pitch, but rather just repeated arguments KPR had made that the signal strength methodology is flawed and that the commission had made errors. So it declined to reconsider its earlier stance; the FM translator application, as well as the signal strength methodology, stand.