North Texas Media, Inc. ("North Texas") appeals from an order of the Federal Communications Commission ("FCC" or "Commission") dismissing its application to construct an FM broadcast facility and to locate stations in both Lake Dallas, and Denton, Texas. The Commission will not accept an application for a new station unless the proposed transmitter site is "separated from other allotments and assignments on the same channel and five adjacent channels by certain minimum distances."1 North Texas contended that, in order to place the required city-grade signal2 over both Lake Dallas and Denton, it had no choice but to propose a transmitter site that violated this regulation, and therefore requested a waiver of the mileage spacing rule. At issue in this case is the Commission's refusal to grant a waiver of the mileage spacing requirements, its consequent dismissal of the North Texas application, and the resulting exclusion of appellant from the comparative hearing process.

We find that the petitioner's challenges to the decision of the Commission are without merit. First, we hold that the FCC's refusal to grant a waiver of its mileage spacing rule, absent a demonstration that no non-short-spaced site exists, is consistent with agency precedent. North Texas clearly failed to make the necessary showing. Second, we hold that the short-spacings proposed by North Texas fall far beyond the purview of the de minimis exception to the spacing rule. Finally, we reject petitioner's argument that FCC precedent required that its waiver request be designated for resolution at the comparative hearing.

In the early 1960's, the FCC considered and adopted a comprehensive scheme for FM channel allocations and assignments.3 In the course of that rulemaking, the agency weighed the relative merits of two methods to prevent interference among stations. One method considered was the "protected contour system," pursuant to which separation requirements are imposed upon applicants on an ad hoc basis. Each proposal must demonstrate that, given the actual facilities and transmitting power of existing stations, its transmitter site will not create objectionable interference. The alternative, denominated the "mileage separation system," operates on the assumption that all stations function with maximum facilities and signal strength and that local variations in topography are irrelevant. Objective mileage separation requirements are thus computed to protect stations from theoretical, rather than actual, interference.

Based on a generation of experience, presumably bad, with ad hoc determinations of mileage separations for AM radio transmitters, the agency opted for strict adherence to fixed minimum mileage separation rules.4 Apart from the manifest benefit of efficient, predictable application, the Commission noted that this system has the virtue of flexibility, in that existing licensees retain lee-way to improve facilities and increase signal strength.5

This same rulemaking proceeding also established the FM radio service table of assignments that allocated the eighty available FM channels to communities across the nation.6 All channels were classified A, B or C, depending upon their transmission range, and were allocated to particular communities. Changes in the table may be effected only through a rulemaking proceeding.7

In the present case, channel 256, a class C broadcast facility, was assigned to Denton, Texas in April, 1982, after a notice and comment rulemaking proceeding.8 However, under the Commission's "15-mile" rule9 in effect at the time of North Texas' application, the allocation of channel 256 to Denton made it available to applicants for both Lake Dallas and Denton. Thus, it was permissible for North Texas to apply for channel 256 and yet to locate a station in nearby unassigned Lake Dallas. While other applicants for channel 256 selected properly spaced sites, North Texas proposed a transmitter location that violated the rule by a significant amount. Its site was short-spaced to two other FM radio stations, 88.3 miles from KTXU (FM) in Paris, Texas, and 141.02 miles from KZBS (FM) in Oklahoma City, Oklahoma, infringements of 16.7 and 8.98 miles, respectively. A waiver was therefore requested.

In an initial decision dated August 9, 1983, the Chief of the FM Branch of the Audio Services Division of the Mass Media Bureau denied the waiver request on the basis of Trend Broadcasting, Inc.10 In that decision the Commission held that it would waive the mileage separation rule only if the waiver request were supported by a showing that no suitable non-short-spaced sites were available. Here, several other applicants had specified properly spaced sites, precluding any possibility that North Texas could make the required showing.11

North Texas petitioned for reconsideration, maintaining that FCC precedent mandated a waiver, and that, at a minimum, its request should be fully aired in the comparative hearing at which the license would be awarded. The request for reconsideration was denied and appellant's application dismissed on December 21, 1983. The Commission subsequently declined to overturn the decision of its staff, and this petition for review followed.

A. Application and Waiver of the Mileage Separation Rule

This court recently described the heavy burden of a litigant who challenges an agency's refusal to waive one of its rules:An applicant for a waiver not only bears the burden of convincing the agency that it should depart from the rules, but, on judicial appeal, the applicant must show that the agency's reasons for declining the waiver were "so insubstantial as to render that denial an abuse of discretion."12

In the present case, the FCC decision is fully grounded in explicit agency precedent and practice and must therefore be affirmed.

Since the time of the major FM rulemaking in the early 1960's, the Commission has shown some leniency in the application of its mileage spacing rules to existing stations;13 but the FCC has, with only a few tightly contained exceptions, refused to permit the licensing of new stations that violate the short-spacing rule.14 This policy flows logically from the choice of the mileage separation method to protect against mutual interference.

The FCC has consistently refused to waive the mileage separation rule unless no non-short-spaced sites are available.15 An applicant seeking a waiver must therefore make a threshold showing, using legitimate engineering evidence, that no properly spaced location is obtainable. The FCC was entirely justified in finding that North Texas had failed to demonstrate that no properly spaced site was available to serve both Lake Dallas and Denton. The record16 demonstrates that North Texas' entire showing on this matter consisted of a flat assertion by its consulting engineer that the short-spacings were "unavoidable."17 No supporting engineering data were submitted.18 As this court has stated, "[t]he applicant for waiver must ... adduce concrete support, preferably documentary."19 The North Texas showing was manifestly inadequate.

One recent FCC decision that initially appeared troublesome was, in fact, only an apparent deviation from the above-described policies. In Sanibel Broadcasting Co.,20 the Commission staff improperly waived a short-spacing of 3.74 miles with an existing station, WVFM of Lakeland, Florida, reasoning that no actual interference would be created.21 Shortly thereafter, WVFM filed pleadings with the Administrative Law Judge ("ALJ") for the comparative hearing, requesting that the short-spacing issue be reconsidered at the hearing. This request was supported by the agency's Mass Media Bureau, which pointed out that the waiver applicant had not submitted information on the availability of alternative transmitter sites. The Bureau conceded that the waiver request had not been "fully considered in the Hearing Designation Order and that that order did not contain a reasoned analysis of the ... waiver request."22 As a result the ALJ designated the waiver issue for resolution at the comparative hearing. The initial improvident grant of a waiver in this case, now described as an error, does not deprive the agency of authority to require future applicants to meet certain standards in order to obtain such a waiver.

B. Application of the "First Local Service" Criterion

Although it was perfectly proper for North Texas to select Lake Dallas as a community of license, such choice did not excuse the applicant from compliance with the FCC's short-spacing rule. North Texas, however, makes much of its alleged entitlement to preferential treatment under section 307(b) of the Federal Communications Act. Section 307(b) of the Act provides that, in considering applications for radio licenses, the Commission must provide a fair, efficient, and equitable distribution of radio service to as many communities as possible.23 In making such a determination, the Commission is guided by three principal objectives,24 only one of which is of decisional significance here--the provision of service of local origin to as many communities as possible. North Texas asserts that the local service criterion should weigh decisively in favor of its proposal, since it would provide first local service to Lake Dallas, or should, at the very least, militate in favor of a waiver of the mileage spacing rule.

We disagree. The FCC allocated channel 256 to Denton, Texas after a notice and comment proceeding during which 307(b) benefits were considered and a specific site restriction was imposed in order "to meet spacing requirements to KTXU in Paris, Texas, KLVV in Dallas, Texas, and KPLX in Fort Worth, Texas."25 In addition, the Commission found, in the context of the present waiver request, that the 307(b) virtues of appellant's application were outweighed by "the strong policy in favor of maintaining the requirements of appropriate spacing as a means of allocating stations."26 Finally, and most significantly, it is absolutely clear that, under normal circumstances, in order for an applicant for a new FM broadcast facility even to be considered for a waiver of the mileage separation rule, a threshold showing must be made that no properly spaced site is available. Section 307(b) considerations do not obviate this requirement.

North Texas also alleges that it was entitled to a waiver because the spacing violations in question were de minimis.27 First, we note that North Texas failed to assert this claim before the Commission and thus is precluded from raising it here.28 Second, the spacing violations inherent in appellant's proposal are far outside the range encompassed by the de minimis exception.29 In fact, the North Texas spacing violation of 16.7 miles is more than double that of any prior FCC waiver based on the de minimis rationale.30 The proposed transmitter site was thus substantially beyond the conceivable range of a de minimis violation as delimited by agency precedent.31

Finally, North Texas argues that the FCC's failure to designate the waiver issue for decision at the comparative hearing was an unexplained and impermissible departure from agency precedent. In fact, however, in the FM radio context, the FCC's policy is to designate a short-spacing issue for resolution at the hearing "only when an applicant can raise a substantial question of fact concerning its opponents' non-short-spaced sites."32 North Texas not only failed to demonstrate that no properly spaced site was available to serve both Lake Dallas and Denton, but also failed to raise any question about the propriety of its opponents' transmitter sites.33

Appellant's reliance on the FCC's television service policy, pursuant to which applications for the waiver of mileage separation rules are automatically considered at the comparative hearing, is misplaced. The FCC adheres to a long standing practice of examining requests for waiver of the FM spacing rules prior to the comparative hearing at which the license is awarded. North Texas had notice of this policy, and all applicants for FM broadcast facilities were subject to similar requirements. No unfair distinctions were made between similarly situated applicants. In addition, the FCC has a rational basis for distinguishing between waiver requests in FM radio and those in television. Far fewer television channels than FM radio facilities are subject to comparative proceedings, making it feasible to consider at the hearing all requests for waiver of the spacing rules in the former service. We therefore hold that the Commission's refusal to designate North Texas' waiver request for resolution at the hearing was entirely consistent with agency precedent.34III. CONCLUSION

We find that the FCC's refusal to waive its mileage separation rule and its consequent dismissal of the North Texas application for the FM broadcast facility on channel 256 were fully consistent with agency precedent. We therefore affirm the Commission's decision.

So Ordered.