**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | MM Docket No. 99-239         |
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| Amendment of Section 73.202(b),  | ) | RM-9658                      |
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| FM Table of Allotments,          | * |                              |
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| California)                      | * |                              |
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**REPORT AND ORDER**

**(Proceeding Terminated)**

**Adopted: August 9, 2000 Released: August 18, 2000**

By the Chief, Allocations Branch:

1.  The Allocations Branch has before it a *Notice of Proposed Rule
    Making,* 64 FR 36322 (July 6, 1999) (DA 99-1236) issued at the
    request of Adelman Communications, Inc. ("petitioner"), licensee of
    Station KEDD(FM), Johannesburg, California, requesting the
    substitution of Channel 280A for Channel 280B1at Johannesburg, the
    reallotment of Channel 280A to Edwards, California, as the
    community's first local aural service, and the modification of its
    authorization accordingly. Petitioner filed comments reiterating its
    intention to effectuate the changes in its proposal. Regent
    Communications, Inc. ("Regent"), High Desert Broadcasting Co. ("High
    Desert"), and Amaturo Group of L.A., Ltd. ("Amaturo"), filed
    comments in opposition to the proposal. Petitioner filed
    consolidated reply comments addressing issues raised by each
    opposition.

2.  In support of its proposal, petitioner states that the community of
    Edwards is a community for allotment purposes. It notes that while
    the community is co-extensive in physical boundaries with Edwards
    Air Force Base, the Commission has previously determined that U.S.
    military installations may be considered *bona fide* communities for
    allotment purposes.[^1] Petitioner reports that while the U.S.
    Census credits Edwards with a population of 7,423 persons, the
    military installation itself reports that it contains approximately
    19,800 persons (*i.e.*, 800 military officers, 4,000 enlisted
    personnel, 9,000 civilian employees, and approximately 6,000 spouses
    and children of military personnel). In further support of the
    community status of Edwards, petitioner states that although Edwards
    is primarily a military installation, it has all the necessary
    indicia of community. It is a Census Designated Place, has its own
    zip code and post office, and police and fire services. It has
    schools, churches, restaurants, recreational facilities and social
    organizations. It also has a library, taxi service, hospital, and
    medical, optometry and dental clinics. It has a weekly newspaper and
    employment services. It has numerous business establishments,
    including a variety store called the Four Seasons Store, pet
    grooming and supplies, barber and beauty shops, florist, laundry and
    dry cleaners.

3.  All parties in opposition argue that petitioner's proposal should be
    denied because it will not result in a preferential arrangement of
    allotments due to loss of reception service. Regent and High Desert
    also allege that the transmitter site that petitioner has proposed
    is not available and that even if it is available, it is too close
    to Edwards Air Force Base to get approval from the FAA. Amaturo
    argues that its proposal to reallot Channel 224A from Avalon to
    Fountain Valley, California and Channel 224A from Riverside to
    Adelanto, California, along with related channel substitutions in
    Ridgecrest and Thousand Oaks, California[^2] should be considered as
    a counterproposal in the instant proceeding, and that the two
    proposals be given comparative consideration. In the alternative,
    Amaturo argues that petitioner's proposal be denied based on the
    loss of service that would result from the grant of both proposals
    and the prejudice that would result to its own proposal.

4.  In its consolidated reply comments, petitioner responds to the
    contentions made by the opposing parties. It argues that its
    proposal will provide a first local aural transmission service to
    the larger community of Edwards and that Johannesburg will retain an
    FM station. It argues therefore that its proposal will serve FM
    Allotment priority (3) and the Commission considers loss of
    reception service which does not involve white or gray area under
    lower FM Allotment priority (4). Petitioner concedes that High
    Desert's estimate that 1,125 persons will lose their fifth service
    is correct, but argues that over 4,600 underserved persons will gain
    a service, and therefore, irrespective of the loss of service, its
    proposal is in the public interest.

5.  Finally, petitioner argues that opponents' arguments that its
    transmitter site is unavailable are speculative and are not
    appropriately raised at the allotment stage. Petitioner argues that
    there is a presumption of site availability at the allotment stage
    and, absent unusual circumstances,[^3] the Commission generally does
    not require detailed showings concerning availability and
    suitability of a specific transmitter site.

6.  [Discussion]{.underline}. As an initial matter, we will consider and
    deny Amaturo's request that it be considered as a counterproposal to
    petitioner's proposal. Although it was timely filed, Amaturo's
    petition is not mutually exclusive with petitioner's and therefore
    will not be considered.[^4] It will be considered in MM Docket No.
    99-329.[^5]

7.  We will grant the change of community. First, we find that Edwards
    is a community for allotment purposes and is deserving of an
    allotment. We believe that this proposal will result in a
    preferential arrangement of allotments because it will provide first
    local aural transmission service to the larger community of Edwards
    (1990 U.S. Census population of 7,423 and an unofficial base
    population of almost 20,000), which serves a higher FM Allotment
    priority (3) and will leave an FM station in the community of
    Johannesburg, population 306 (priority (4)).[^6]

8.  We also believe that this change is in the public interest. Despite
    the parties' statements that this proposal will result in
    underserved areas, we note that a Commission engineering analysis
    shows that the entire loss area is well served with at least five
    services. In addition, the gain area includes some underserved
    areas, and will provide a first service to 794 persons, a second
    service to 1,170 persons, a third service to 471 persons, a fourth
    service to 5,934 persons, and a fifth service to 403 persons. We
    also note that while most of the persons currently served by Station
    KEDD will no longer receive service from the station,[^7] in
    situations such as this, in which the loss area is well served and
    no white or gray area is being created, the Commission has
    specifically declined to take into account the degree of service a
    licensee will maintain to its original community as a factor in
    deciding whether a change of community should be granted.[^8]
    Instead, the Commission relies solely on a determination of whether
    the change would result in a preferential arrangement of allotments,
    which we have determined will result in this case.[^9]

9.  With respect to the issue of transmitter site availability,
    petitioner correctly states that this issue is only addressed at the
    allotment stage in unusual circumstances, which do not exist in this
    case. The question of city-grade coverage is not at issue here, and
    the site is not within the boundaries of the military base
    itself.[^10] We will take petitioner's representations that its site
    was proposed in good faith and will not address the issue further.

10. Channel 280A can be allotted at Edwards at petitioner's requested
    site consistent with the minimum distance separation requirements of
    Section 73.207(b) and the principal community coverage requirements
    of Section 73.315(a) of the Commission's Rules with a site
    restriction of 9.2 kilometers (5.7 miles) southeast of the
    community.[^11]

11. Accordingly, pursuant to the authority contained in Sections 4(i),
    5(c)(1), 303(g) and (r) and 307(b) of the Communications Act of
    1934, as amended, and Sections 0.61, 0.204(b) and 0.283 of the
    Commission\'s Rules, IT IS ORDERED, That effective October 2, 2000,
    the FM Table of Allotments, Section 73.202(b) of the Commission\'s
    Rules, IS AMENDED for the communities listed below, as follows:

Community Channel Number

Edwards, California 280A

Johannesburg, California 265A

12. IT IS FURTHER ORDERED, That the Secretary of the Commission shall
    send by Certified Mail Return Receipt Requested, a copy of this
    *Order*, to the following:

David M. Hunsaker, Esq. Kevin C. Boyle, Esq.

Putbrese, Hunsaker and Trent Latham and Watkins

100 Carpenter Drive, Suite 100 1001 Pennsylvania Ave. N.W. Suite 1300

Sterling, VA 20167-0217 Washington, DC 20004-2505

(Counsel for petitioner) (Counsel for Regent Communications, Inc.)

David D. Oxenford, Esq. Bradford D. Carey, Esq.

Fisher, Wayland, Cooper, Leader, & Zaragoza Hardy & Carey

2001 Pennsylvania Ave. NW Suite 400 110 Veterans Blvd Suite 300

Washington, DC 20006-1851 Metairie, LA 70005

(Counsel for High Desert Broadcasting Co.) (Counsel for Amaturo Group of
LA, Ltd.)

13. IT IS FURTHER ORDERED, pursuant to Section 316(a) of the
    Communications Act of 1934, as amended, that the license of Adelman
    Communications, licensee of Station KEDD(FM), Johannesburg,
    California IS MODIFIED to specify operation on Channel 280A in lieu
    of Channel 280B1, subject to the following conditions:

\(a\) Within 90 days of the effective date of this *Order*, the licensee
shall submit to the Commission a minor change application for a
construction permit (Form 301).

\(b\) Upon grant of the construction permit, program tests may be
conducted in accordance with Section 73.1620.

> \(c\) Nothing contained herein shall be construed to authorize a
> change in transmitter location or to avoid the necessity of filing an
> environmental assessment pursuant to Section 1.1307 of the
> Commission\'s Rules.

14. Pursuant to Commission Rule Section 1.1104(1)(k) and (3)(m), any
    party seeking a change of community of license of an FM or
    television allotment or an upgrade of an existing FM allotment, if
    the request is granted, must submit a rule making fee when filing
    its application to implement the change in community of license
    and/or upgrade. As a result of this proceeding, Adelman
    Communications, licensee of Station KEDD(FM), is required to submit
    a rule making fee in addition to the fee required for the
    applications to effect the change in community of license and/or
    upgrade.

15. The comments and/or counterproposals filed by Regent Communications,
    Inc., High Desert Broadcasting Co. and Amaturo Group of LA ARE
    DISMISSED.

16. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED.

17. For more information regarding this proceeding, contact Victoria M.
    McCauley, Mass Media Bureau (202) 418-2136.

FEDERAL COMMUNICATIONS COMMISSION

John A Karousos

Chief, Allocations Branch

Policy and Rules Division

Mass Media Bureau

[^1]: *See Fort Rucker and Geneva, Alabama, and Blakely, Georgia*, 5 FCC
    Rcd 37 (1990.

[^2]: These changes to the Table of Allotments have been proposed in MM
    Docket No. 99-329.

[^3]: *See Woodstock and Broadway, Virginia,* 3 FCC Rcd 6398 (1988);
    Caldwell*, Texas,* 13 FCC Rcd 13722 (1998) (allotment proposals
    requiring a novel approach to waiver of the Commission's rules
    governing city-grade contours). *See also, San Clemente, CA,* 3 FCC
    Rcd 6728 (1988) *appeal dismissed sub nom*., *Mount Wilson
    Broadcasters, Inc. v. FCC*, 884 F.2d 1462 (D.C. Cir. 1989) (cases
    involving military bases and a transmitter site inside the
    parameters of the base and an actual study reveals that no other
    fully-spaced site exists outside the base).

[^4]: *See McFarland and Coalinga, California,* 13 FCC Rcd 1315, n. 2
    (1998)*; Potts Camp and Saltillo, Mississippi,* 13 FCC Rcd 11909, n.
    1 (1998)*.*

[^5]: *See Notice of Proposed Rule Making* in MM Docket 99-329, 14 FCC
    Rcd 19397 (1999).

[^6]: 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. \[Co-equal weight is given to
    priorities (2) and (3).\]

[^7]: 40,203 persons out of 43,123 persons served will lose service from
    Station KEDD(FM).

[^8]: *See Report and Order* in MM Docket No. 88-526 ("Change of
    Community Report and Order") 4 FCC Rcd 4870, 4873 (1989).

[^9]: *Id.*

[^10]: *See Woodstock and Broadway, Virginia,* 3 FCC Rcd 6398 (1988);
    *Caldwell, Texas,* 13 FCC Rcd 13722 (1998); *San Clemente, CA,* 3
    FCC Rcd 6728 (1988) *appeal dismissed sub nom*., *Mount Wilson
    Broadcasters, Inc. v. FCC*, 884 F.2d 1462 (D.C. Cir. 1989).

[^11]: The coordinates for Channel 280A at Edwards, California are
    34-59-40 and 117-59-32.