**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Amendment of Section 73.202(b), ) MM Docket No. 00-73

Table of Allotments, ) RM-9861

FM Broadcast Stations. )

(Hornbrook, California) )

[REPORT AND ORDER]{.underline}

(Proceeding Terminated)

Adopted: January 24, 2001 Released: February 9, 2001

> By the Chief, Allocations Branch:

1\. The Commission considers herein the [Notice of Proposed Rule
Making]{.underline} ("[Notice]{.underline}"), 15 FCC Rcd 10340 (2000),
issued in response to a petition for rule making filed on behalf of
Logan and Company ("petitioner"), proposing the allotment of FM Channel
255A to Hornbrook, California, as that locality's first local aural
transmission service. Petitioner filed supporting comments in response
to the [Notice]{.underline}. No other comments were filed in this
proceeding.

2\. As Hornbrook (pop. 350)[^1] is not incorporated, the
[Notice]{.underline} requested the petitioner to provide additional
information to establish Hornbrook's status as a *bona* fide community
for allotment purposes. In response, petitioner provided evidence of
entities specifically identified by street addresses in Hornbrook, such
as the Hornbrook Community Bible Church, Grandma's Hornbrook Market,
Hornbrook Chevron, and Hornbrook Grange #391. Moreover, petitioner
advises that the Siskiyou County Sheriff's Department located in
Hornbrook sponsors such organizations as a Community Crime Resistance
Program as well as the Siskiyou County Neighborhood Watch. Additionally,
we are advised that Hornbrook contains a grocery store, restaurant,
saloon, and a beauty shop. Moreover, general government entities located
in Hornbrook include the Fish and Game Department, the Food and
Agriculture Department, and an Inspection Station. Hornbrook is also
served by the Central Oregon & Pacific Railroad. Additionally,
petitioner provided a statement by the Hornbrook postmaster, advising
that Hornbrook has established community characteristics such as an
elementary school, a volunteer fire department, and a water district.
Further, the postmaster states that postal service is provided to in
excess of 550 delivery addresses, many of which are businesses.
Petitioner also provided statements of several residents concerning the
attributes of Hornbrook and their sense of unity and involvement in
community concerns. Further, petitioner remarks that the closest
population centers to Hornbrook are Yreka, California (approximately 20
miles south) and Medford, Oregon (approximately 30 miles north). While
Hornbrook is not as isolated as [Cal-Nev-Ari, Nevada]{.underline}, 14
FCC Rcd 17153 (1999), petitioner asserts that it is far more
self-sufficient than the case of [Seven-Locks Broadcasting
Co.]{.underline}, 37 FCC82 (1964) (where the nature of the suburban
communities, all with essential services provided by the county,
precludes a showing that they have an identifiable population grouping
separate and distinct from all others).

3\. In consideration of the above, we conclude that Hornbrook is a
community for allotment purposes. It contains an identifiable population
grouping with business entities that associate themselves with the
residents of Hornbrook. [See]{.underline} [Garrison,
Kentucky]{.underline}, 6 FCC Rcd 1428 (1991).

# 

# The One-Step Upgrade Applications At Keno

4\. Before the Hornbrook rule making petition was filed initiating this
proceeding, two mutually-exclusive applications were filed during a
revised filing window for a new FM station on Channel 253A at Keno,
Oregon.[^2] The two applications for Channel 253A at Keno are not
short-spaced and, therefore, not mutually exclusive with the proposal in
this proceeding to allot Channel 255A to Hornbrook. However, prior to
the counterproposal deadline in this proceeding, both of the Keno
applicants amended their applications requesting to upgrade Channel 253A
at Keno on adjacent Channel 254C1 pursuant to the Commission's one-step
upgrade rule (see Section 73.3573). These one-step upgrade amendments
for Channel 254C1 at Keno are short-spaced under the Commission's
minimum distance separation rules to proposed Channel 255A at Hornbrook,
and for this reason, at least one of these applicants requests that
their applications be considered as counterproposals in this proceeding.

5\. Although these amendments are technically in conflict with the
proposed allotment of Channel 255A at Hornbrook, they cannot be
considered as counterproposals in this proceeding for two reasons. First
and foremost, the Commission's one-step upgrade rule in effect at the
time that these amendments were filed, Section 73.3573(a)(1), only
allowed licensees, permittees, and first-come, first-serve applicants to
file one-step upgrade proposals. That rule did not permit
mutually-exclusive applicants for a new FM channel such as the
applicants involved here to file an application or an amendment to
upgrade the class of the Keno channel prior to the counterproposal
deadline in this proceeding.[^3] Indeed, under our precedent, if a
higher class channel is made available to a community for the first
time, and the originally allotted channel is unlicensed and the pending
applications have not been processed, the higher class channel must be
made available for application to all interested parties.
[See]{.underline} [Lafayette, Louisiana]{.underline}, 2 FCC Rcd 7303
(1987), [app.]{.underline} [for]{.underline} [review]{.underline}
[denied]{.underline}, 4 FCC Rcd 5073 (1989). Therefore, these amended
applications for Channel 254C1 cannot be considered as counterproposals
in this proceeding.

6\. Second, it appears that at least one of these applicants recognized
the technical conflict between Channel 254C1 at Keno and Channel 255A at
Hornbrook and stated "The instant application is being filed as a
COUNTER PROPOSAL to ... pending Rulemakings to allocate FM Channel 255A
at Hornbrook.....[^4] However, this applicant violated Section 1.420(a)
of the Commission's Rules as well as the specific language in this
proceeding requiring that counterproponents serve the initial
petitioner, and this is another basis for not considering that
application as a counterproposal.

7\. Alternatively, even if we were to consider the amended applications
as counterproposals in this proceeding, they would still lose on a
comparative basis. Comparative proposals such as these are considered on
the basis of our allotment priorities.[^5] Applying these priorities, we
note that the Hornbrook proposal triggers priority three because it is a
first local transmission service. By way of contrast, the amended Keno
applications do not trigger a higher allotment priority. A staff
engineering analysis reveals that neither of the upgrade amendments
trigger priorities one or two because they would not provide a first or
second full-time aural reception service. Instead, they trigger priority
four -- other public interest matters, as enhanced secondary service.
Since it is well established that a first local service under priority
three is a higher allotment priority than an upgrade under priority
four, the Hornbrook proposal would be favored on a comparative
basis.[^6] [See]{.underline} also [Benton, Clarksville, Dardanelle, El
Dorado, Hampton, Harrison, Huntsville, Mena, Ozark and Sherwood,
Arkansas; Homer, Louisiana; Sallisaw and Vinita, Oklahoma; Hooks and
Kilgore, Texas]{.underline}, 3 FCC Rcd 4840 (1988), [recon.]{.underline}
[denied]{.underline} 7 FCC Rcd 2555 (1992).

8\. In view of the above, and based on the interest expressed in
providing a first local aural transmission service to Hornbrook,
California, we will allot Channel 255A to that community, as requested.
As indicated in the [Notice]{.underline}, Channel 255A can be allotted
to Hornbrook, California, consistent with the minimum distance
separation requirements of Section 73.207(b)(1) of the Commission's
Rules, provided the transmitter is located at least 3.7 kilometers (2.3
miles) southwest of the community, utilizing coordinates 41-53-06 NL and
122-35-03 WL, to avoid a short-spacing to Station KAGO-FM, Channel
258C1, Klamath Falls, Oregon.

9\. 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 March 26, 2001, the FM Table of
Allotments, Section 73.202(b) of the Commission\'s Rules, IS AMENDED for
the community listed below, as follows:

> [City]{.underline} [Channel No.]{.underline}
>
> Hornbrook, California 255A
>
> 10\. A filing window for Channel 255A at Hornbrook, California, will
> not be opened at this time. Instead, the issue of opening this
> allotment for auction will be addressed by the Commission in a
> subsequent Order.
>
> 11\. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED.
>
> 12\. For further information concerning the above, contact Nancy
> Joyner, Mass Media Bureau, (202) 418-2180. Questions related to the
> auction process should be addressed to the Audio Services Division,
> Mass Media Bureau, (202) 418-2700.
>
> FEDERAL COMMUNICATIONS COMMISSION
>
> John A. Karousos
>
> Chief, Allocations Branch Policy and Rules Division
>
> Mass Media Bureau

[^1]: Population figure was taken from the Rand McNally Commercial Atlas
    and Marketing Guide (2000 Ed.).

[^2]: See [Order]{.underline}, 9 FCC Rcd 6844 (1994).

[^3]: ^?^ While this provision was eliminated from Section
    73.3573(1)(1), it has been retained in Section 73.203(a)(1). This
    rule provides that the only type of applicant that is allowed to
    file a one-step upgrade proposal is a first-come, first-serve
    applicant, not an applicant that has filed a mutually-exclusive
    application pursuant to a filing window.

[^4]: See File No. BPED-19950206MB, Ex. E-6.

[^5]: ^?^ The FM allotment priorities are: (1) first fulltime aural
    service; (2) second full-time aural service; (2) first local
    service; and (4) other public interest matters. \[Co-equal weight is
    given to priorities (2) and (3).\] See [Revision of]{.underline} [FM
    Assignment Policies and Procedures]{.underline}, 90 FCC 2d 88
    (1982).

[^6]: ^?^ While we recognize that the originally applied for Channel
    253A at Keno constitutes a first local transmission service, those
    applications are not in conflict with the proposal in this
    proceeding to allot Channel 255A to Hornbrook, California, and that
    the ultimate winner of the comparative proceeding for Channel 253A
    at Keno can provide a first local service to Keno notwithstanding
    the outcome of this rulemaking proceeding. As a result, the
    appropriate Section 307(b) comparison would be between a first local
    service on Channel 255A at Hornbrook, California, and upgraded
    service from a Class A to a Class C1 at Keno.