**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Amendment of Section 73.202(b), ) MM Docket No. 89-686

Table of Allotments ) RM-7035

FM Broadcast Stations. ) RM-7320

(Eatonton and Sandy Springs, Georgia; )

and Anniston and Lineville, Alabama) )

[MEMORANDUM OPINION AND ORDER]{.underline}

(Proceeding Terminated)

**Adopted:** June 20, 1997 **Released:** June 27, 1997

By the Chief, Policy and Rules Division:

1\. The Commission has before it an Application for Review filed by
Sapphire Broadcasting, Inc. (formerly Emerald Broadcasting of the South,
Inc.) directed to the [Report and Order]{.underline} in this proceeding.
6 FCC Rcd 6580 (1991). Jacor Broadcasting of Atlanta, Inc., the National
Association of Broadcasters, WSB, Inc. and Summit-Atlanta Broadcasting
Corporation filed Oppositions to the Application for Review. Sapphire
Broadcasting filed a Reply to the Oppositions. For the reasons discussed
below, we are dismissing the Application for Review.

[Background]{.underline}

2\. The [Report and Order]{.underline} in this proceeding considered a
counterproposal filed by Sapphire Broadcasting, licensee of Station
WHMA, Channel 263C, Anniston, Alabama, to substitute Channel 263C1 for
Channel 263C, reallot Channel 263C1 to Sandy Springs, Georgia, and
modify the Station WHMA license to specify operation on Channel 263C1 at
Sandy Springs.[^1] The [Report and Order]{.underline} denied the
Sapphire Broadcasting counterproposal. That decision was premised on the
dependence of Sandy Springs on the Atlanta Urbanized Area, the loss of
existing service, and the creation of new interference. The Application
for Review addressed each of these premises.

3\. In considering the proposed Channel 263C1 reallotment to Sandy
Springs, we noted that the reallotment was short-spaced to the licensed
site of Station WSSL, Channel 263C, Gray Court, South Carolina.[^2] On
the date the Sapphire Broadcasting counterproposal was filed, SFX
Broadcasting of South Carolina, Inc. (\"SFX Broadcasting\"), licensee of
Station WSSL, filed a one-step application (File No. BPH-900212IB) to
downgrade its allotment to Channel 263C1 and relocate its transmitter
site.[^3] That application was granted on November 9, 1990. As a result
of the grant of that application, we were able to consider the Sapphire
Broadcasting counterproposal for a Channel 263C1 reallotment to Sandy
Springs. However, the construction permit authorizing a transmitter site
relocation and Channel 263C1 operation for Station WSSL at Gray Court
was never implemented. For this reason, the construction permit was
cancelled on April 11, 1994. The licensee of Station WSSL did not
contest that cancellation.

[Milledgeville and Covington, Georgia]{.underline}

4\. In a separate pleading, Scotts Trail Radio, Inc., licensee of
Station WLRR, Channel 264A, Milledgeville, Georgia, filed a \"Motion to
Dismiss Application for Review and to Terminate Proceeding.\" In that
Motion, Scotts Trail Radio refers to its Petition for Rule Making
proposing the substitution of Channel 264C3 for Channel 264A at
Milledgeville, reallotment of Channel 264C3 to Covington, and
modification of the Station WLRR license to specify operation on Channel
264C3 at Covington. This reallotment proposal conflicts with the
proposed Channel 263C1 reallotment proposal for Sandy Springs. In its
Motion, Scotts Trail Radio notes the cancellation of the Station WSSL
construction permit. In this regard, Scotts Trail Radio argues that
because the Sandy Springs reallotment was contingent upon the Station
WSSL transmitter relocation and downgrade, dismissal of the Application
for Review is appropriate in view of the abandonment of those actions.

5\. In response, Sapphire Broadcasting and WNNX License Investment
Company, proposed assignee of Station WHMA, (\"Sapphire/WNNX\"), filed a
\"Joint Opposition to Petition for Rule Making.\" In that Joint
Opposition, Sapphire/WNNX acknowledge the cancellation of the Station
WSSL construction permit at Gray Court. However, Sapphire/WNNX argue
that the licensee of Station WSSL has never retracted its willingness to
downgrade its allotment and relocate its transmitter site. According to
Sapphire/WNNX, the licensee of Station WSSL \"simply got tired\" of
filing applications to extend the completion date of its construction
permit. In this regard, Sapphire/WNNX states that they have contacted
the licensee of Station WSSL in an effort to update its willingness to
downgrade its allotment and relocate its transmitter site.

6\. Sapphire/WNNX also argue that it was not incumbent upon SFX
Broadcasting to file an application to express its willingness to
downgrade the Station WSSL allotment. In this connection, Sapphire/WNNX
refer to our action in [Earle, Pocohantas and Wilson, Arkansas, and Como
and New Albany, Mississippi]{.underline}, 10 FCC Rcd 8270 (1995), in
which we accepted a statement from the licensee of Station KPOC-FM
consenting to the necessary channel and transmitter site change. That
decision does not preclude dismissal of the Application for Review in
this proceeding. In [Earle]{.underline}, the proponent included the
necessary license modification proposal in that proceeding. In doing so,
we were able to take a final action modifying the Station KPOC-FM
license in that proceeding. In contrast, SFX Broadcasting filed a
one-step application to downgrade its allotment separate from this
proceeding. As a result, SFX Broadcasting could have downgraded its
allotment regardless of the ultimate decision in this proceeding. This
procedure would have permitted SFX Broadcasting to accommodate the
Sapphire Broadcasting proposal in this proceeding as well as any other
potential application or rulemaking proposal. The fact that Sapphire
Broadcasting chose not to make SFX Broadcasting a party in this
proceeding does not now justify going forward with a rulemaking proposal
contingent on favorable action on an application that is not even on
file.

7\. As a result of the action subsequent to the [Report and
Order]{.underline} cancelling the Station WSSL construction, the
Sapphire Broadcasting proposal does not now comply with the applicable
separation requirement set forth in Section 73.207(b) of the Rules and
cannot be favorably considered. Section 73.208 of the Rules clearly
specifies the applicable reference point to be used in determining FM
minimum separations as \"authorized\" transmitter sites. 47 C.F.R.
§73.208(a)(1)(i). In this situation, the licensed Station WSSL
transmitter site represents the only authorized site for Station WSSL
and Sapphire Broadcasting or any other rule making proponent must meet
the separation requirement for this site. In regard to this proceeding,
the proposal for a Channel 263C1 allotment at Sandy Springs is
short-spaced to the authorized site of Station WSSL regardless of any
disposition of the Application for Review. As such, the Application for
Review is devoid of practical significance and is moot. We see no
countervailing public interest benefit in considering this Application
for Review or otherwise continuing this proceeding. At this juncture,
the appropriate action is dismissal of the Application for Review and
termination of this proceeding.[^4]

8\. Accordingly, IT IS ORDERED, That the aforementioned Application for
Review filed by Sapphire Broadcasting, Inc.IS HEREBY DISMISSED.

9\. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED.

10\. For further information concerning this proceeding, contact Robert
Hayne, Mass Media Bureau, (202) 418-2177.

FEDERAL COMMUNICATIONS COMMISSION

Douglas W.Webbink

Chief, Policy and Rules Division

Mass Media Bureau

[^1]: ^?^The proposed reallotment from Anniston to Sandy Springs was
    filed pursuant to the provisions of Section 1.420(i) of the
    Commission\'s Rules which provides for the reallotment of a channel
    to a new community and modification of a station license or
    construction permit to reflect the new community without competition
    from other interested parties for the allotment. [See]{.underline}
    [Modification of FM and TV Authorizations to Specify a New Community
    of License]{.underline} (\"[Community of License]{.underline}\"), 4
    FCC Rcd 4870 (1989); [recon]{.underline}, 5 FCC Rcd 7094 (1990).
    Under [Community of License]{.underline}, the proposed reallotment
    must result in a preferential arrangement of allotments. This
    determination is based upon the FM allotment priorities set forth in
    [Revision of FM Assignment Policies and Procedures]{.underline}, 90
    FCC 2d 88 (1982). The FM allotment priorities are: 1) First
    full-time aural service; 2) second full-time aural service; 3) First
    local service; and 4) Other public interest matters.

[^2]: ^?^Section 73.207(b)of the Commission\'s Rules requires a
    separation of 270 kilometers (168 miles) between the co-channel
    Class C allotment at Gray Court and the proposed Class C1 allotment
    at Sandy Springs. In this instance, the separation is only 230
    kilometers (143 miles).

[^3]: ^?^The separation requirement between co-channel Class C1
    allotments is 245 kilometers (152 miles). The Class C1 construction
    permit site for Station WSSL is 246.7 kilometers from the proposed
    Class C1 allotment at Sandy Springs.

[^4]: ^?^At this time, there is no assurance that the licensee of
    Station WSSL will file a new application to downgrade its allotment
    and relocate its transmitter site, and whether the application will
    ultimately be granted and the facilities licensed. In the event the
    Station WSSL impediment to a Channel 263C1 allotment at Sandy
    Springs is eliminated, either through an application or rulemaking
    procedure, Sapphire Broadcasting could then refile the Sandy Springs
    proposal.