ORIGINAL
Before the
FEDERAL COMMUNICATIONS COMMISSIOr&
Washington, D.C. 20554

VE:D

JUN 3 02006
Lc1era Communications Commission
Office of Secretary

In the Matter of

Application of Lazer Licenses, LLC
For Minor Modification of
KXRS(FM), Bernet, California

To:
Attention:

File No. BPH-20040205AAK
Facility ID No. 36829

Marlene H. Dortch, Secretary
Donna C. Gregg, Chief, Mass Media Bureau
REPLY TO OPPOSITION

LBI Radio License Corp. ("LBI"), licensee of FM broadcast station KBUE, Channel
288A, 105.5 mHz, Long Beach, California, by its attorneys, hereby submits its Reply to the
Opposition to Petition for Reconsideration filed on June 20, 2006 by Lazer Licenses, LLC
("Lazer") in the above-captioned proceeding.
Lazer, the licensee of FM broadcast station KXRS, Channel 289A, 105.5 mHz, Hemet,
California, filed a "one-step" modification application in 2004 to change frequencies from
Channel 289A to Channel 288A. LBI demonstrated in its March 25, 2004 Informal Objection
that grant of the Lazer application would not serve the public interest because, inter alia, the
facilities proposed by Lazer would not allow KXRS to provide adequate city-grade coverage to
its community of license. Moreover, LBI included with its Informal Objection an Engineering
Statement showing that the proposed KXRS relocation and channel change would cause massive
interference to LBI's KBUE comparable to the interference that would be caused by a Class B
operation at the proposed KXRS site, which would be short-spaced to KBUE by 61.3 km.

In its June 7, 2006 Petition for Reconsideration, LBI demonstrated that the Commission's
Staff had erred in granting Lazer' s modification application without according any meaningful
consideration to the questions raised by LBI and without adequately explaining its decision.
Thus, the Staff rejected LBI' s detailed showing with respect to city-grade coverage with a
conclusory assertion that its propagation expert at the Office of Engineering and Technology
("OET") had found "no major terrain obstruction," and ignored the interference issue altogether.
See Letter from Rodolfo F. Bonacci to Lazer Broadcasting Corporation (May 3, 2006) ("Letter
Order") at 1. Further, as LBI noted in its Petition, the Staff departed from its customary
procedures by granting the KXRS application without waiting for concurrence by the Mexican
government.
Apart from its disingenuous characterizations of LBI' s contentions and a liberal dose of
hyperbolic rhetoric, Lazer offers no real response to the arguments advanced by LBI in its
Petition for Reconsideration. Instead, Lazer comments on the number of paragraphs in and pagelength of the Informal Objection and observes that LBI's contentions concerning inadequate citygrade coverage were summarized in a brief concluding paragraph to the Informal Objection.
Opposition at 2. Lazer conveniently ignores the detailed engineering analysis included with
LBI' s Informal Objection, which demonstrated that, assuming uniform terrain, the proposed
KXRS facility would not provide a 70 dBu signal to any part of Hemet. Informal Objection,
Engineering Statement, Figure 2. Further, the Engineering Statement demonstrated that, of the
27 radials from the KXRS transmitter site that pass through Hemet, 14 are totally blocked and
another 8 at least partially blocked by terrain features. Id. at Figures 4A-4AA. Even using
Longley-Rice signal level predictions, the proposed KXRS facilities would provide a 7OdBu
signal to only 67.4 percent of the population and 72.9 percent of the area of Hemet, well under

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the 80 percent "substantial compliance" level for applicants. Id. at Figure 5. Moreover, LBI
showed that the existing KXRS facilities meet the city-grade coverage requirements, and that the
proposed modifications therefore would cause a reduction in service to the station's existing
audience. Id. at Figures 5-6. Lazer effectively conceded the accuracy of LBI's engineering
assertions and argued, instead, that the Commission's rules "[do]not absolutely require line of
sight to an FM applicant's principal community." See Lazer Opposition to Informal Objection,
filed April 14,2004, at 2-3.
In view of the evidence on the record, LBI submits, the Staffs brief and conclusory
dismissal of the issue in its Letter Order granting the KXRS one-step application was not
sufficient. And contrary, to Lazer's suggestion (Opposition at 2), LBI certainly is not precluded
from "reiterat[ing] its claim of inadequate city-grade coverage" at the reconsideration stage when
the Commission's Staff has not provided a sufficiently detailed explanation to allow a
determination that the issue was properly considered and resolved.
Lazer next contends that LBI' s interference argument is one "which LBI declined to
make in it's Informal Objection." Opposition at 3. While it is correct that LBI's objection
focused primarily on Lazer' s failure to satisfy the city-grade coverage requirement - a failure
that, by itself, required dismissal of the application - even Lazer concedes that LBI referred to
the interference issue in its Informal Objection and, further, that the Objection also included an
Engineering Statement which discussed LBI's concerns about potential interference. Opposition
at 3-4. See also LBI Informal Objection at 2 n.2 and Engineering Statement at 2.
Significantly, Lazer does not dispute LBI's technical showing that, even though the
proposed KXRS facilities technically satisfy the minimum distance separation requirements for
co-channel Class A stations, non-uniform terrain will cause the station's 60 dBu contour

distances in the azimuths toward KBUE to exceed Class B standards. In other words, LBI
expects to receive interference from the new KXRS facilities equivalent to the interference that
would be caused by a Class B facility short-spaced by 61.3 kilometers to the KBUE transmitter
site. As LBI noted in its Petition for Reconsideration, and as even Lazer must concede, the
Letter Order fails to mention the interference concerns raised in LBI' s Informal Objection, much
less to address them. Notwithstanding Lazer's claims to the contrary, the essential facts
underlying LBI's concern with respect to the potential for massive interference from KXRS's
modified facilities were clearly set forth in the Informal Objection. Further, and again contrary
to Lazer's casually dismissive response to its Opposition, LBI was not required to expressly
request a waiver or otherwise recite specific "magic words" to justify consideration by the
Commission of the potential for harmful interference and the substantial net loss of aural service
that will result from KXRS's proposed operation.
The one-step application process for change in frequency that was utilized by Lazer is, of
course, essentially the equivalent of an allotment rulemaking proceeding and therefore should
entail a thorough evaluation to ensure compliance with the Commission's statutory obligation to
"provide a fair, efficient, and equitable distribution of radio service." 47 USC § 307b. Here,
while it is true that the Commission ordinarily relies upon compliance with minimum distance
separation requirements when processing such one-step applications, LBI provided engineering
evidence to show that the proposed KXRS facility will cause massive interference to co-channel
station KBUE. In its Petition for Reconsideration, LBI has submitted additional detailed
information concerning the potential for harmful interference - and a net loss of aural service to
nearly 1 million persons -- as well as the availability of acceptable alternative transmitter sites
for KXRS to operate on Channel 288A. See LBI Petition for Reconsideration, Engineering

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Statement. LBI respectfully submits that its uncontradicted showing concerning interference
warrants consideration, and should have been addressed in the Letter Order, with or without an
express request for "waiver." The Commission's obligation to "take a hard look" at all the
pertinent evidence in the record, and not simply rely upon a mechanistic application of its rules,
is not confined to the context of affirmative waiver requests. Rather, it represents a fundamental
precept of administrative law. See LBI Petition for Reconsideration at 4-5. Here, LBI submits,
the deleterious effects of the proposed KXRS operation on KBUE and its audience cannot be
reconciled with the Commission's public interest mandate and requires full consideration on
review of the Staffs decision. See 47 C.F.R. § 1.106(c)(2).
For the reasons set forth above and in its Petition for Reconsideration, LBI respectfully
submits that the Letter Order granting the KXRS application was in error and should be
reversed.
Respectfully submitted,
LBI RADIO LICENSE CORP.

B

Wiley Rein & Fielding LLP
1776 K Street NW
Washington, DC 20006
TEL: 202.719.7000
FAX: 202.719.7049
Its Attorneys
Dated: June 30, 2006

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CERTIFICATE OF SERVICE

I hereby certify that on this 30t1 day of June, 2006, I caused copies of the foregoing
Reply to Opposition to be mailed via first-class mail postage prepaid to the following:

Harry C. Martin, Esq.
Harry F. Cole, Esq.
Fletcher Heald & Hildreth, PLC
1300 North 17th Street

I 1' Floor
Arlington, VA 22209-3 801
Counsel for Lazer Broadcasting Corporation

WRFMAIN 12503100.1

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