FEDERAL COMMUNICATIONS COMMISSION
445 TWELFTH STREET, SW
WASHINGTON DC 20554
MEDIA BUREAU
AUDIO DIVISION
APPLICATION STATUS: (202) 418-2730
HOME PAGE: www.fcc.gov/mb/audio

PROCESSING ENGINEER: Arthur E. Doak
TELEPHONE: (202) 418-2715
MAIL STOP: 1800B3-AED
INTERNET ADDRESS: arthur.doakfcc.gov

May 27, 2015

The City College of New York
160 Convent Avenue
NAC 1/513
New York, NY 10031
In re: WHCR-FM, New York, NY
The City College of New York
FacilityiDNo.: 11412
BPED-20 1403 13AAT

Dear Applicant:
This letter refers to the above-captioned minor change application filed by The City College of New
York ("City") for noncommercial educational Class D FM Station WHCR-FM to change from Channel
21 2D to Channel 220D. In the application, City requests waiver of the contour overlap provisions of
47 C.F.R. § 73.509(b). For the reasons stated below, we deny City's waiver request and dismiss the
application.
Waiver Request
An engineering study of the application reveals that the proposed facility would cause prohibited contour
overlap, in violation § 73.509(b) to the following facilities: (1) second-adjacent channel Class B 1 Station
WNYE(FM), New York, New York (Facility ID No. 3539) on Channel 218; and (2) second-adjacent
channel Class B Station WBMP(FM), New York, New York (Facility ID No. 58579) on Channel 222.
Specifically, WHCR's proposed 100 dBu interfering contour would be completely encompassed by the
60 dBu protected contours of both Station WNYE and Station WBMP. City recognizes these violations
and requests waiver of the contour overlap provisions of § 73.509(b).
In support of the waiver request, City states WHCR' s present channel (Channel 212) is highly
congested. City argues that the station is surrounded by other stations and that its present signal
is diminished in all directions. It also argues that, although the proposed operation would receive
co-channel interference from two stations, operation on Channel 220 would be significantly quieter
than the present operation on Channel 212. City contends that there is no channel in the area that
is interference free and that operation on Channel 220 is the best choice. City states that the actual
interference caused to WNYE's protected contour would be only 2.55 square kilometers and that the
actual interference caused to WBMP' s protected contour would be only 0.79 square kilometer. City
further argues that, due to the height of the antenna, the actual interference area would never reach the
ground. Finally, City cites Educational Information Corporation, 6 FCC Rcd 2207 (1991), as evidence
of the Commission's willingness to consider waivers of such overlap in certain instances. Therefore, City
concludes that waiver of § 73 .509(b) is warranted in this case.

Discussion
We disagree. While requests for waivers of new second- and third-adjacent channel overlap for stations
are individually appealing due to the relatively large area and population served as compared to the small
area receiving prohibited contour overlap, they lose this appeal when considered against the
Commission's allocations scheme. Allowing applicants to create new prohibited contour overlap
effectively nullifies the protection mandated by Section 73.509 to a station's protected service area. In
particular, the affected station would lose service area and potential population to be served without
receiving any benefit in return.1 This interference interrupts the continuity of existing service provided
by WNYE and WBMP throughout their protected service areas2, and thus diminishes the quality of FM
service provided by the afflicted stations.3 Over time, the grant of numerous similar waivers would
degrade the quality of existing FM reception from stations. As the Commission stated in Open Media
Corp., 8 FCC Rcd at 4070, 4071:
It is the overall scheme of [noncommercial educational FM allocations which is
paramount, and when faces with a choice between a larger service area with overlap
received on one hand, and lesser coverage with no prohibited overlap on the other, the
Commission favors the latter. See Educational Information Corporation, 6 FCC Rcd
2207, 2208 (1991).
In view of the limited interference potential between second-adjacent channel FM stations, the
Commission has granted waivers of Section 73.509 where a noncommercial educational station sought
to increase the 60 dBu service contour so as to overlap the interfering contour of another noncommercial
educational station and thereby receive overlap. See Educational Information Corp., 6 FCC Rcd 2207
(1991). Here, WHCR proposes to cause prohibited overlap and create new interference. Therefore, the
requested waiver of Section 73.509 does not fall within that precedent. Accordingly, the applicant's
request for waiver of 47 C.F.R. Section 73.509(b) will be denied.
Conclusion
The Commission's rules may be waived only for good cause shown.4 An applicant seeking a rule waiver
has the burden to plead with particularity the facts and circumstances that warrant such action.5 The
Commission must give waiver requests "a hard look," but an applicant for waiver "faces a high hurdle
even at the starting gate"6 and must support its waiver request with a compelling showing.7 The
Commission may exercise its discretion to waive a rule where the particular facts make strict compliance

Contrast this with the situation of WCPE, Raleigh, NC in Educational Information Corp., 6 FCC Red 2207 (1991),
wherein licensed FM station WCPE agreed to accept a small amount of interference received in exchange for a large
increase in its 60 dBu service area.
2 Please note, the application did not include documentation showing that WNYE or WBMP consented to the grant
of the application. Therefore, grant of the application would constitute a modification of their licenses.
This has been called the "swiss cheese" effect, where a station's protected service contour is punctured by "holes"
of interference from multiple second- and third-adjacent channel FM stations. Revision ofFMRules (Notice of
Proposed Rulemaking), 21 RR 1655, 1674 (1961).
447 C.F.R. § 1.3.
See Columbia Communications Corp. v. FCC, 832.F.2d 189, 192 (D.C. Cir, 1987) (citing Rio Grande Family
Radio Fellowship, Inc. v. FCC, 406 F.2d 644, 666 (D.C. Cir. 1968)).

6 See WAITRadio v. FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969), affd, 459 F.2d 1203 (1972), cert. denied, 93 S.Ct.
461 (1972) ("WAITRadio"). See also Thomas Radio v. FCC, 716 F.2d 921, 924 (D.C. Cir. 1983).
Greater Media Radio Co., Inc., Memorandum Opinion and Order, 15 FCC Red 7090 (1999) (citing Stoner
Broadcasting System, Inc., Memorandum Opinion and Order, 49 FCC 2d 1011, 1012 (1974)).

inconsistent with the public interest.8 In addition, the Commission may take into account considerations
of hardship, equity, or more effective implementation of overall policy on an individual basis.9 However,
waiver of the Commission's rules is appropriate only if both (i) special circumstances warrant a deviation
from the general rule, and (ii) such deviation will serve the public interest.10 City's request fails to
present good cause for waiver of Section 73.509(b). City has not shown sufficiently unique "special"
circumstances, i.e., rare and exceptional circumstances beyond its control to justify a waiver of Section
73.509(b). Finally, we find that the facts and circumstances set forth in the justification are insufficient
to establish that granting waiver of Section 73.509(b) would be in the public interest.
In light of the above, The City College of New York's request for waiver of 47 C.F.R. § 73.509(b) IS
HEREBY DENTED and Application File Number BPED-20 1403 13AAT IS HEREBY DISMISSED as
unacceptable for filing.11 This action is taken pursuant to 47 C.F.R. § 0.283.
Sincerely,

//

(51

Rodolfo F. Bonacci
Assistant Chief
Audio Division
Media Bureau

cc: Cohn and Marks LLP
Charles A. Hecht & Associates

8Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990) ("Northeast Cellular").
WAJTRadio, 418 F.2d at 1159; Northeast Cellular, 897 F.2d at 1166.
10Network IF, LLC v. FCC, 548 F.3d 116, 125-128 (D.C. Cir. 2008) ("Network IF"); Northeast Cellular, 897 F.2d
at 1166.

Please note, we have contacted City numerous times in the past year and provided it with numerous opportunities
to improve the waiver request or amend the application. As of this date, no amendment has been filed.