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332 Federal Communications Commission Reports
F.C.C. 69-1174
BEFORE THE
FEDERAL COMMUNICATIONS COMMISSION
Wasmineron, D.C. 20554
In the Matter of
CLARIFICATION OF Suspprartrs B anp C or Parr
73 or THE Commiusston’s ROLES AND REGU-
LATIONS (NONCOMMERCIAL EDUCATIONAL
FM STATIONS OPERATING ON UNRESERVED
FM CHANNELS)
Request by WBAJ-FM, Inc., for Declar-
atory Ruling
MEMORANDUM. OPINION AND ORDER
(Adopted October 29, 1969)
By THE COMMISSION: COMMISSIONER BARTLEY DISSENTING.
1. The Commission has under consideration a “Request for Declar-
atory Ruling” filed on October 10, 1969, by WBAI-FM, Inc., licensee:
of FM station WBAI, New York City, a noncommercial educational
station operating on channel 258, which is an unreserved or rom-
mercial channel. The request concerns the question of whether such
stations, noncommercial educational in character even though they
operate on unreserved channels, are governed by the provisions of
subpart B of part 73 of the Commission’s rules section 73.201 et sequ
which relate to commercial FM stations, or by the provisions of
subpart C of that part, sections 73.501 et seq., governing noncom-
mercial educational FM stations. WBAI was cited for violation of
three of the sections of the commercial rules-—section 73.282 eon-
cerning program logging, section 73.287 concerning station identifica-
tion, and section 73.254 concerning annual equipment performance
measurements—and it claims that these citations were in error since
it is governed instead by the educational FM rules, specifically sections
73.582, 73.587, and 73.554, which it did not violate. It seeks a declar-
atory ruling to this effect, to remove uncertainty {Administrative Pro-
cedure Act, sec. 554 (d)). There are 18 such noncommercial educational
FM stations on unreserved or commercial FM channels.
2, We recognize that, as to stations such as WBAI, the rules at
present are ambiguous as to whether the regular commercial FM rues
or the noncommercial educational FM rules apply. Therefore. it 35
not appropriate to impose any penalty on WBAI-FM, Ine.. or its
parent Pacifica Foundation, in connection with the matters discussed
herein, and none will be imposed.* To remove the uncertainty for the
ihe citation to WBAI included a number of matters. The statement that no penalty
will be imposed relates only to those invelved in the “Request for Declaratory Ruling” and
discussed here, ie, situations where WBAI would not have been in violation if the
educational FM rules, rather than the commercial FM rules, are regarded’ as applicable.
20 F.O.0. 24
Noncommercial Educational FM Stations 333:
future, we are amending subpart C as set forth herein below. As to the
basic merits of the three situations—which set of rules should apply—
the conclusions discussed below appear appropriate and are embodied
in the rule amendment herein.
3. Program logging.—With respect to program logging, it is clear
that the noncommercial educational FM rules should apply, since the
character of these stations’ programing is completely different from
that of commercial AM, FM, and TYV stations, even though they op-
erate on unreserved or commercial FM channels, and is the same as:
the much more numerous FM stations on reserved channels. The pro-
visions of section 73.582 are much simpler than those of the correspond-
ing commercial station rule, 73.282, and are geared to the much smaller
amount of information which noncommercial educational stations are
required to furnish with initial and renewal applications (they use
FCC forms 340 and 342 instead of forms 301 and 303).* Therefore it
is appropriate that section 73.582 should apply instead of 73.282, and
the rule adopted herein so provides,
4, Station identification——The rules concerning required station
jdentification—-sections 73.287 and 73.587—are much the same in their
requirements, the difference being that the former, govornog com-
mercial stations, permits an FD not to be given on schedule only where
certain types of material would be interrupted (“single speech, play,”
etc.) while the educational rule permits postponement of an ID when
it would interrupt “a single continuous program of longer duration
than 30 minutes.” WBAI claims that the rules recognize a valid dis- .
tinction in this respect between commercial and educational opera-
tions, and that the latter present many types of programs which do
not fall within the types listed in the commercial rule as permitting
ID postponement but which nonetheless would suffer from a required
interruption.®
5. The justification for applying the educational rather than the
commercial rule in this case is less clear than in the matter of program
logging mentioned above. However, the ID rules for all of the aural
services—-which are now unduly complex and in part obsolescent—
are in the process of revision in docket 18248. Pending this revision,
it does not appear appropriate to require stations such as WBAI to
meet the more stringent requirements of the commercial rule. Ac-
cordingly, the rule amendment adopted herein makes the educational
rule applicable for the time being.
6. Annual equipment performance measurements.—-Section 73.254,
for commercial FM stations, provides that stations shall make equip-
ment performance measurements of their transmitters at least annually
(audio frequency response, audio frequency harmonic distortion, and
AM and FM output noise levels) ; they shall keep the records of such
apart from other violations of sec. 73.282 not involved here, the citation stated that
WBAI's program logs failed to show program classifications as required by that rule
for the programs of commercial stations.” Sec, 72.582, for educational FM stations, does not
contain this requirement.
‘Tt appears from the citation and WBAI’s response that an ID was not made where
it would have interrupted a discussion program, This would not fall within the “single
speech” exception of sec. 73.282, but it would come within the “single continuous program”
exception of sec, 73.587.
20. F.C.C. 24
304 Federal Communications Commission Reports
measurements for 2 years. WBAI was cited for several violations of
this rule. Its position is that, while it has made such measurements
at times in the past, it is not required to do so because of the nonap-
plicability of this rule. The corresponding educational FM rule, sec-
tion 73.554, contains certain specifications for transmitter performance
but does not require performance measurements.
T. We are of the view that in this situation the regular commercial
rule should, and @es, apply to stations such as WBAI. In general,
equipment performance measurements are necessary in order to insure
proper station operation, and there is no reason why these stations
should be any less subject to equipment performance measurement
requirements than commercial stations operating in the same band.
In fact, WBAI-FM does not urge that this requirement is not gener-
ally a good thing; its argument is simply that noncommercial edu-
cational FM stations on reserved channels are not required to do
this, that (subscription-supported as it is) WBAI-FM is no more
able to bear the expense involved than they are, and that whatever
e cae are for exempting such stations, they apply equally to
T.
8. We are of the view that educational FM stations generally—
other than low-power 10-w. stations—should no longer be exempt
from this requirement, and in a notice of proposed rulemaking
adopted today we propose to make them subject to it. For the period
in the meantime, we hold that such stations on unreserved or com-
mercial channels are subject to the commercial rule, section 73.254,
since the operations do not differ technically in any respect from com-
mercial stations on these channels. We point out that, on the other
hand, there are some differences between the situations of stations
such as WBAJ and those of educational FM stations on the 20 reserved
channels (channels 201-220), even those which are not 10 watters.
Many of the educational stations on the reserved channels, other than
10 watters, operate with relatively small facilities, effective radiated
power of less than 1 kw., and low antenna height, whereas WBAI
operates with 5.40 kw., E.R.P. and antenna height above average ter-
rain of 1,220 feet, the maximum permitted for a high-power ne
B) facility in the New York City area under present rules. There-
fore, technically improper operation is a matter of significance over
a much greater distance than is the case with a typical FM facility
on a reserved channel,
9. Conclusions and rule amendment—-For the reasons discussed
above, we conclude that stations such as WBAI—noncommercial
educational stations operating on unreserved or commercial channels—-
are subject to the educational FM rules in subpart C of part 73, rather
than the commercial FM rules in subpart B of that part, in most
respects including program logging and station identification. How-
ever, they are subject to the provisions of subpart B with respect to
assignment and classification rules (secs. 72,201-73.213), and the
requirements concerning transmitters, performance and measurements
(sec. 73.254), rather than the corresponding educational FM rules. We
are accordingly adopting a new section concerning such stations,
20 F.C.C. 2d
Noncommercial Educational FM Stations 335
section 73.506, making this explicit.t Since this is declaratory, clari-
fying and interpretative in nature, notice and prior proceedings are
not required under the Administrative Procedure Act (5 U.S.C. 558).
10. In view of the foregoing, Zt is ordered, That, pursuant to
authority contained in sections 4(i) and 303 of the Communications
Act of 1934, as amended, subpart C of part 73 of the Commission’s
rules 7s amended by adding the following new section 73.506, effective
December 12, 1969:
§ 73.506 Noncommercial educational broadcast stations operating on unreserved
channels.
Non commercial educational FM stations which operate on channels Usted
in § 73.202 rather than § 73.401, but which comply with § 73.503 as to licensing
requirements and the nature of the service rendered, shall comply with the
provisions of the following sections of Subpart B of this Part: 73.201 through
73.213 (Classification of FM Broadcast Staticns and Allocation of Frequencies) ;
§ 73.254 (Required Transmitter Performance) ; and such other sections of Sub-
part B as are made specifically applicable by the provisions of this Subpart ©.
In all other respects such stations shall be governed by the provisions of this
subpart and not Subpart B.
11. ft is further ordered, That the “Request for Declaratory Rul-
ing” filed on October 10, 1968, by WBAI-FM, Inc., Zs granted to
the extent indicated hereinabove, and in all other respects Zs denied.
Feprra, Communications ‘ComMIssion,
Ben F. Warre, Secretary.
4Et should be emphasized. that this provision of the rules wilt apply only to stations
on these channels which are truly noncommercial educational, those complying with the
revisions of sec. 73.503 concerning the nature and character of the service rendered.
ew sec, 78.506 so states. It does not apply to other stations even though their service may
be tard ba oneommersia in character; they are subject to the regular commercial rules
in subpart B.
20 F.C.C. 2d
106-516-693