> DA 06-1327

In Reply Refer to:

1800B3-TSN

Released: June 29, 2006

Mark Goodman Productions, Inc.

P.O. Box 177

Hodgenville, KY 42748

In re: **WXAM(AM), Buffalo, Kentucky**

**Facility ID No. 40213**

Application for Major Modification

File No. BMJP-20050118AEV

Dear Counsel:

This letter refers to the above-noted application filed by Mark Goodman
Productions, Inc.\
("MGP") for major modification to the facilities of station WXAM(AM),
Buffalo, Kentucky, seeking to change the community of license from
Buffalo, Kentucky to Hodgenville, Kentucky. For the reasons set forth
below, we dismiss the application.

**Background**. MGP timely filed its FCC Form 175 application to change
the WXAM(AM) community of license during the filing window for AM
Auction No. 84 ("Auction 84").[^1] The application was determined not to
be mutually exclusive with any other proposal filed in the Auction 84
filing window, and MGP was invited to file its complete FCC Form 301
application by January 18, 2005.[^2] MGP timely filed its complete FCC
Form 301 application on January 18, 2005. MGP proposes only a change in
community of license, with no change to the WXAM(AM) technical
facilities. MGP attached to its application a narrative and technical
report addressing the implications of the proposed community change
under Section 307(b) of the Communications Act of 1934, as amended,[^3]
which directs the Commission to make a "fair, efficient, and equitable"
distribution of radio service among communities in the United
States.[^4]

WXAM(AM) is the sole local transmission service licensed at Buffalo,
Kentucky, which has a ZIP code but is not a Census Designated Place. MGP
estimates its population at 500. MGP proposes to change WXAM(AM)'s
community of license to Hodgenville, Kentucky (2000 Census population
2,874) as that community's second local / first competitive radio
transmission service.[^5] BCI's Section 307(b) narrative indicates that
Buffalo will continue to receive aural reception service from at least
16 stations.[^6]

**Discussion**. The Commission may permit a licensee to change a
broadcast station's community of license only if the proposal would
advance the Section 307(b) mandate to provide for the fair, efficient,
and equitable distribution of radio services.[^7] Our *FM Assignment
Policies* delineate three core priorities: provision of first aural
reception service to a community, provision of second aural reception
service to a community, and provision of first local transmission
service at a community.[^8] The fourth priority is "other public
interest matters," which encompasses any other factors that the
Commission may take into consideration, including provision of a second
local transmission service.[^9] Retention of the sole local service at
Buffalo implicates Priority (3) -- first local transmission service,
while provision of a second local service at Hodgenville implicates
Priority (4) -- other public interest matters. Generally, the Commission
prohibits the removal of an existing station representing a community's
sole local transmission service, even when the proposed move would
provide a first local transmission service at a new, larger
community.[^10] This policy is subject, as are all Commission policies,
to waiver under appropriate circumstances.[^11] But the Commission has
emphasized that "the fact that a proposal would create a new local
service (at the expense of an existing service) is not sufficient, by
itself, to warrant a waiver."[^12] Rather, such a proposal "is
presumptively contrary to the public interest."[^13] In this regard, the
Commission has stated that:

> The public has a legitimate expectation that existing service will
> continue, and this expectation is a factor we must weigh independently
> against the service benefits that may result from reallotting of a
> channel from one community to another, regardless of whether the
> service removed constitutes a transmission service, a reception
> service, or both. Removal of service is warranted only if there are
> sufficient public interest factors to offset the expectation of
> continued service.[^14]

MGP does not specifically request a waiver of the Commission's policy
against removing a sole local service. It argues, instead, that "Buffalo
is not today a community for allotment purposes, if it ever in fact
was," and that even if it is determined to be a community for allotment
purposes, "there is a greater public interest in providing a second
competitive service to Hodgenville."[^15] We disagree. MGP has not
demonstrated that Buffalo is not a licensable community. Indeed, MGP's
own statement suggests that Buffalo's status as a community has not
changed since WXAM(AM) was licensed.[^16]

More importantly, MGP has not shown why the Commission's policy against
removal of a community's sole local service should be waived in a
situation where, as here, the removal would result in a lower-priority
allotment. The Commission has held that the fact that a licensee
proposes to remove a station to a larger community to become that
community's first local transmission service does not by itself justify
the removal of a smaller community's sole local broadcast service.[^17]
Here, WXAM(AM) would become Hodgenville's second local transmission
service. MGP's claim that Buffalo will continue to receive service from
WXAM(AM) is likewise unavailing. The Commission has stated that it will
not accept continued reception service coverage by the station as a
factor in favor of a licensee seeking to change its community of
license.[^18] Lastly, we conclude that MGP's reliance on *Radio
Wheeling, Inc.*,[^19] is misplaced. This case involved a proposal for a
first local FM transmission service allotment at Bethlehem, West
Virginia (a suburb of Wheeling, West Virginia) and a competing proposal
for a first local FM transmission service allotment at a smaller
community, Key, Ohio. First, *Radio Wheeling* antedates the *FM
Assignment Policies* and the specific allotment priorities that
currently govern our Section 307(b) analysis. Second, *Radio Wheeling*
was decided primarily on the Administrative Law Judge's finding that Key
did not qualify as a community under then-Section 73.210 of the
Commission's rules and not, as MGP suggests, on a finding that the
disparity in sizes between Bethlehem and Key overcame the presumptive
priority of a first local transmission service.[^20] Finally, *Radio
Wheeling* involved competing proposals for new service, not the
relocation of a sole existing local service. As noted above, the
Commission places great weight on the expectation of continued existing
service, and MGP has demonstrated no special circumstances that would
outweigh that expectation.

We cannot find, on the existing record in this case, that there are
sufficient public interest factors to offset the expectation of
continued local service at Buffalo, Kentucky. Accordingly, we conclude
that the public interest, convenience, and necessity would not be served
by grant of MGP's application. Therefore, the application of Mark
Goodman Productions, Inc., File No. BMJP-20050118AEV, for major
modification to change the community of license of station WXAM(AM),
Buffalo, Kentucky, IS DISMISSED.

Sincerely,

Peter H. Doyle, Chief

Audio Division

Media Bureau

cc: John F. Garziglia, Esq.

[^1]: *See* "AM New Station and Major Modification Auction Filing
    Window; Minor Modification Application Freeze," Public Notice, 18
    FCC Rcd 23016 (MB/WTB 2003).

[^2]: *See* "AM Auction No. 84 Singleton Applications," Public Notice,
    19 FCC Rcd 22569 (MB 2004).

[^3]: 47 U.S.C. § 307(b).

[^4]: *See* "Section 307(b) Amendment Deadline Established for Certain
    AM Auction No. 84 Singleton Applications," Public Notice, 20 FCC Rcd
    10701 (MB 2005).

[^5]: Hodgenville is currently served by WKMO(FM).

[^6]: MGP lists the following stations providing at least a 60 dBµ (FM)
    or .5 mV/m (AM) signal to Buffalo: WHAS(AM), WXXA(AM), WAMZ(FM),
    WKJK(AM), and WGTK(AM), Louisville, Kentucky; WVLK(AM) and WLAP(AM),
    Lexington, Kentucky; WKUE(FM), WQXE(FM), and WIEL(AM),
    Elizabethtown, Kentucky; WJCR-FM, Upton, Kentucky; WCKQ(FM),
    Campbellsville, Kentucky; WKMO(FM), Hodgenville, Kentucky; WDRD(AM),
    Newburg, Kentucky; WXAM(AM), Buffalo, Kentucky; and WKRC(AM),
    Cincinnati, Ohio. Five or more reception services are considered to
    be "abundant" service. *See* *Family Broadcasting Group*, Decision,
    53 R.R.2d 662 (Rev. Bd. 1983), *rev. denied*, FCC 83-559 (Nov. 29,
    1983); *see also LaGrange and Rollingwood, Texas*, Memorandum
    Opinion and Order, 10 FCC Rcd 3337 (MMB 1995).

[^7]: *See* 47 U.S.C. § 307(b) ("Section 307(b)").

[^8]: *Revision of FM Assignment Policies and Procedures*, Second Report
    and Order, 90 FCC 2d 88, 91-93 (1982) ("*FM Assignment Policies*").
    Priorities (2) and (3) are co-equal. The FM allotment priorities are
    applied to Section 307(b) determinations for community change
    proposals for AM stations. *Allesandro Broadcasting Co.*, Decision,
    56 R.R.2d 1568 (Rev. Bd. 1984).

[^9]: *FM Assignment Policies*, 90 FCC 2d at 93. On second local
    transmission service being considered under Priority (4), *see*,
    *e.g.*, *Bear Lake and Honor, Michigan*, Memorandum Opinion and
    Order, 14 FCC Rcd 8799, 8801 (1999) ("\[T\]he Commission has
    previously determined that, in implementing the requirement of
    Section 307(b) of the Communications Act 'to provide a fair,
    efficient, and equitable distribution of radio service' among the
    States, a first local transmission service is more important than
    other public interest matters, such as a second local service or an
    upgrade of existing service.").

[^10]: *Amendment of the Commission's Rules Regarding Modification of FM
    and TV Authorizations to Specify a New Community of License*, Report
    and Order, ("*New Community R & O*")*,* 4 FCC Rcd 4870 (1989),
    *recon. granted in part*, Memorandum Opinion and Order, 5 FCC Rcd
    7094, 7097(1990) ("*New Community MO&O*").

[^11]: *Id*. On waiver standards generally, *see* *Northeast Cellular
    Telephone Co. v. F.C.C.,* 897 F.2d 1164, 1166 (D.C. Cir. 1990)
    ("*Northeast Cellular*") ("\[A\] waiver is appropriate only if
    special circumstances warrant a deviation from the general rule and
    such deviation will serve the public interest," citing *WAIT Radio
    v. F.C.C.*, 418 F.2d 1153, 1157-59 (D.C. Cir. 1969) ("*WAIT
    Radio*").

[^12]: *New Community MO&O*, 5 FCC Rcd at 7097.

[^13]: *Id*.

[^14]: *Id*. *See also Revision of Procedures Governing Amendments to FM
    Table of Allotments and Changes of Community of License in the Radio
    Broadcast Services*, Notice of Proposed Rule Making, 10 FCC Rcd
    11169, 11183-84 (2005); and *Sparta and Buckhead,, Georgia,* 15 FCC
    Rcd 3474 (MMB 2000) ("\[u\]nder very limited circumstances, the
    removal of a community's sole local service could be justified if
    there are compelling public interest factors to offset the
    expectation of continued service").

[^15]: MGP Section 307(b) Narrative, first unnumbered page.

[^16]: Indeed, documents filed by WXAM(AM)'s original licensee before
    the station was first licensed support a finding that circumstances
    have not changed. On June 24, 1974, Lincoln County Broadcasting,
    Inc. ("LCBI"), the original licensee of what was then known as
    WLCB(AM), sought to modify its then-pending application for a
    construction permit (File No. BAP-19838). In Exhibit B to that
    filing, LCBI made the following representations in support of its
    request to locate the station's main studio in Hodgenville:

    > The transmitter will be located approximately 3 miles from the
    > city of Hodgenville, Kentucky in a rural area known as Buffalo,
    > Kentucky. This is an unincorporated area which has only two
    > businesses. The main business district (and all shopping) is
    > located in Hodgenville. . . Buffalo is a rural farming community
    > with no business district as such.

    Despite these representations, LCBI did not seek to change the
    station's community of license from the "rural area known as
    Buffalo, Kentucky" to Hodgenville.

[^17]: *See*, *e.g.*, *Potts Camp and Saltillo, Mississippi*, Memorandum
    Opinion and Order, 16 FCC Rcd 16116 (2001) (denying relocation of
    sole local service at a town of 483 to a town of 1,782).

[^18]: *See New Community R & O*, 4 FCC Rcd at 4873.

[^19]: 85 FCC 2d 496 (ALJ), *reversed*, 85 FCC 2d 486 (Rev. Bd. 1980),
    *rev. denied*, 87 F.C.C.2d 523 (1981) ("*Radio Wheeling*").

[^20]: *Id*. at 515. The Administrative Law Judge also denied Radio
    Wheeling, Inc.'s ("RWI") Bethlehem proposal, finding that the
    applicant actually intended to provide an additional local service
    to Wheeling rather than a first service at Bethlehem. The applicant
    for Key, Ohio did not appeal the denial of its application. The
    Review Board granted RWI's application on appeal, reversing the
    Administrative Law Judge's finding that RWI intended merely to serve
    Wheeling.